Part I. THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE MENTAL ACTIVITIES OF THE JUDGE. (continued 5)

To know whether anything is natural law or not always depends upon the grade and standing of our immediate experience—and hence we shall never be able honestly to make any universal proposition. The only thing possible is the greatest possible accurate observation of probability in all known possible cases, and of the probability of the discovery of exceptions. Bacon called the establishment of reliable assumptions, counting up without meeting any contradictory case. But what gives us the law is the manner of counting. The untrained mind accepts facts as they occur without taking the trouble to seek others; the trained mind seeks the facts he needs for the premises of his inference. As Mill says, whatever has shown itself to be true without exception may be held universal so long as no doubtful exception is presented, and when the case is of such a nature that a real exception could not escape our observation.

This indicates how we are to interpret information given by others. We hear, “Inasmuch as this is always so it may be assumed to be so in the present case.” Immediate acceptance of this proposition would be as foolhardy as doubt in the face of all the facts. The proper procedure is to examine and establish the determining conditions, i.e., who has counted up this “always,” and what caution was used to avoid the overlooking of any exception. The real work of interpretation lies in such testing. We do not want to reach the truth with one blow, we aim only to approach it. But the step must be taken and we must know how large it is to be, and know how much closer it has brought us to the truth. And this is learned only through knowing who made the step and how it was made. Goethe’s immortal statement, “Man was not born to solve the riddle of the universe, but to seek out what the problem leads to in order to keep himself within the limits of the conceivable,” is valid for us too.

Our great mistake in examining and judging often lies in our setting too much value upon individual circumstances, and trying to solve the problem with those alone, or in not daring to use any given circumstance sufficiently. The latter represents that stupidity which is of use to scientific spirits when they lack complete proof of their points, but is dangerous in practical affairs. As a rule, it is also the consequence of the failure to evaluate what is given, simply because one forgets or is too lazy to do so. Proper action in this regard is especially necessary where certain legal proceedings have to occur which are entitled to a definite degree of probability without requiring certainty, i.e., preliminary examinations, arrests, investigations of the premises, etc. No law says how much probability is in such cases required. To say how much is impossible, but it is not unwise to stick to the notion that the event must appear true, if not be proved true, i.e., nothing must be present to destroy the appearance of truth. As Hume says, “Whenever we have reason to trust earlier experiences and to take them as standards of judgment of future experiences, these reasons may have probability.”

The place of probability in the positive determination of the order of modern criminal procedure is not insignificant. When the law determines upon a definite number of jurymen or judges, it is probable that this number is sufficient for the discovery of the truth. The system of prosecution establishes as a probability that the accused is the criminal. The idea of time-lapse assumes the probability that after the passage of a certain time punishment becomes illusory, and prosecution uncertain and difficult. The institution of experts depends on the probability that the latter make no mistakes. The warrant for arrest depends on the probability that the accused behaved suspiciously or spoke of his crime, etc. The oath of the witness depends on the probability that the witness will be more likely to tell the truth under oath, etc.

Modern criminal procedure involves not only probabilities but also various types of possibility. Every appeal has for its foundation the possibility of an incorrect judgment; the exclusion of certain court officials is based on the possibility of prejudice, or at least on the suspicion of prejudice; the publicity of the trial is meant to prevent the possibility of incorrectness; the revision of a trial depends on the possibility that even legal sentences may be false, and the institution of the defendant lawyer depends upon the possibility that a person without defense may receive injustice. All the formalities of the action of the court assume the possibility that without them improprieties may occur, and the institution of seizing letters and messages for evidence, asserts only the possibility that the latter contain things of importance, etc.

When the positive dicta of the law deal with possibility and probability in questions of great importance the latter become especially significant.

We have yet to ask what is meant by “rule” and what its relation is to probability. Scientifically “rule” means law subjectively taken and is of equal significance with the guiding line for one’s own conduct, whence it follows that there are only rules of art and morality, but no rules of nature. Usage does not imply this interpretation. We say that as a rule it hails only in the daytime; by way of exception, in the night also; the rule for the appearance of whales indicates that they live in the Arctic Ocean; a general rule indicates that bodies that are especially soluble in water should dissolve more easily in warm than in cold water, but salt dissolves equally well in both. Again we say: As a rule the murderer is an unpunished criminal; it is a rule that the brawler is no thief and vice versa; the gambler is as a rule a man of parts, etc. We may say therefore, that regularity is equivalent to customary recurrence and that whatever serves as rule may be expected as probable. If, i.e., it be said, that this or that happens as a rule, we may suppose that it will repeat itself this time. It is not permissible to expect more, but it frequently happens that we mistake rules permitting exceptions for natural laws permitting none. This occurs frequently when we have lost ourselves in the regular occurrences for which we are ourselves responsible and suppose that because things have been seen a dozen times they must always appear in the same way. It happens especially often when we have heard some phenomenon described in other sciences as frequent and regular and then consider it to be a law of nature. In the latter case we have probably not heard the whole story, nor heard general validity assigned to it. Or again, the whole matter has long since altered. Lotze wrote almost half a century ago, that he had some time before made the statistical observation that the great positive discoveries of exact physiology have an average life of about four years. This noteworthy statement indicates that great positive discoveries are set up as natural laws only to show themselves as at most regular phenomena which have no right to general validity. And what is true of physiology is true of many other sciences, even of the great discoveries of medicine, even legal medicine. This, therefore, should warn against too much confidence in things that are called “rules.” False usage and comfortable dependence upon a rule have very frequently led us too far. Its unreliability is shown by such maxims as “Three misses make a rule” or “Many stupidities taken together give a golden rule of life,” or “To-day’s exception is to-morrow’s rule,” or the classical perversion: “The rule that there are no rules without exception is a rule without exception, hence, there is one rule without exception.”

The unreliability of rules is further explained by their rise from generalization. We must not generalize, as Schiel says, until we have shown that if there are cases which contradict our generalizations we know those contradictions. In practice approximate generalizations are often our only guides. Natural law is too much conditioned, cases of it too much involved, distinctions between them too hard to make, to allow us to determine the existence of a natural phenomenon in terms of its natural characteristics as a part of the business of our daily life. Our own age generalizes altogether too much, observes too little, and abstracts too rapidly. Events come quickly, examples appear in masses, and if they are similar they tend to be generalized, to develop into a rule, while the exceptions which are infinitely more important are unobserved, and the rule, once made, leads to innumerable mistakes.

Section 29. (g) Chance.

The psychological significance of what we call chance depends upon the concept of chance and the degree of influence that we allow it to possess in our thinking. What is generally called chance, and what is called chance in particular cases, will depend to a significant degree upon the nature of the case. In progressive sciences the laws increase and the chance-happenings decrease; the latter indeed are valid only in particular cases of the daily life and in the general business of it. We speak of chance or accident when events cross which are determined in themselves by necessary law, but the law of the crossing of which is unknown. If, e.g., it is observed that where there is much snow the animals are white, the event must not be attributed to accident, for the formation of snow in high mountains or in the north, and its long stay on the surface of the earth develop according to special natural laws, and the colors of animals do so no less—but that these two orderly series of facts should meet requires a third law, or still better, a third group of laws, which though unknown some time ago, are now known to every educated person.

For us lawyers chance and the interpretation of it are of immense importance not only in bringing together evidence, but in every case of suspicion, for the problem always arises whether a causal relation may be established between the crime and the suspect, or whether the relation is only accidental. “Unfortunate coincidence”—“closely related connection of facts”—“extraordinary accumulation of reason for suspicion,”—all these terms are really chance mistaken for causation. On the knowledge of the difference between the one and the other depends the fate of most evidence and trials. Whoever is fortunate enough in rightly perceiving what chance is, is fortunate in the conduct of his trial.

Is there really a theory of chance? I believe that a direct treatment of the subject is impossible. The problem of chance can be only approximately explained when all conceivable chance-happenings of a given discipline are brought together and their number reduced by careful search for definite laws. Besides, the problem demands the knowledge of an extremely rich casuistry, by means of which, on the one hand, to bring together the manifoldness of chance events, and on the other to discover order. Enough has been written about chance, but a systematic treatment of it must be entirely theoretical. So Windelband’s[150] excellent and well-ordered book deals with relations (chance and cause, chance and law, chance and purpose, chance and concept) the greatest value of which is to indicate critically the various definitions of the concept of chance. Even though there is no definition which presents the concept of chance in a completely satisfactory manner, the making of such definitions is still of value because one side of chance is explained and the other is thereby seen more closely. Let us consider a few of these and other definitions. Aristotle says that the accidental occurs, παρἁ φὑσν, according to nature. Epicurus, who sees the creation of the world as a pure accident, holds it to occur τἁ μἑν ἁπὁ τὑχης, τἁ δἑ παρ’ἡμὡν. Spinoza believes nothing to be contingent save only according to the limitations of knowledge; Kant says that conditioned existence as such, is called accidental; the unconditioned, necessary. Humboldt: “Man sees those things as accident which he can not explain genetically.” Schiel: “Whatever may not be reduced back to law is called accidental.” Quetelet: “The word chance serves officiously to hide our ignorance.” Buckle derives the idea of chance from the life of nomadic tribes, which contains nothing firm and regulated. According to Trendelenburg chance is that which could not be otherwise. Rosenkranz says: Chance is a reality which has only the value of possibility, while Fischer calls chance the individualized fact, and Lotze identifies it with everything that is not valid as a natural purpose. For Windelband “chance consists, according to usage, in the merely factual but not necessary transition from a possibility to an actuality. Chance is the negation of necessity. It is a contradiction to say: ‘This happened by accident,’ for the word ‘by’ expressed a cause.”

A. Höfler[151] says most intelligently, that the contradiction of the idea of chance by the causal law may be easily solved by indicating the especial relativity of the concept. (Accidental with regard to one, but otherwise appearing as a possible causal series).

The lesson of these definitions is obvious. What we call chance plays a great role in our legal work. On our recognizing a combination of circumstances as accidental the result of the trial in most cases depends, and the distinction between accident and law depends upon the amount of knowledge concerning the events of the daily life especially. Now the use of this knowledge in particular cases consists in seeking out the causal relation in a series of events which are adduced as proof, and in turning accident into order. Or, in cases where the law which unites or separates the events can not be discovered, it may consist in the very cautious interpretation of the combination of events on the principle simul cum hoc non est propter hoc.

Section 30.(h) Persuasion and Explanation.

How in the course of trial are people convinced? The criminalist has as presiding officer not only to provide the truth which convinces; it is his business as state official to convince the defendant of the correctness of the arguments adduced, the witness of his duty to tell the truth. But he again is often himself convinced by a witness or an accused person—correctly or incorrectly. Mittermaier[152] calls conviction a condition in which our belief-it-is-true depends on full satisfactory grounds of which we are aware. But this state of conviction is a goal to be reached and our work is not done until the convincing material has been provided. Seeking the truth is not enough. Karl Gerock assures us that no philosophical system offers us the full and finished truth, but there is a truth for the idealist, and to ask Pilate’s blasé question is, as Lessing suggests, rendering the answer impossible. But this shows the difference between scientific and practical work; science may be satisfied with seeking truth, but we must possess truth. If it were true that truth alone is convincing, there would not be much difficulty, and one might be content that one is convinced only by what is correct. But this is not the case. Statistically numbers are supposed to prove, but actually numbers prove according to their uses. So in the daily life we say facts are proofs when it would be more cautious to say: facts are proofs according to their uses. It is for this reason that sophistical dialectic is possible. Arrange the facts in one way and you reach one result, arrange the facts another way and you may reach the opposite. Or again, if you study the facts in doubtful cases honestly and without prejudice you find how many possible conclusions may be drawn, according to their arrangement. We must, of course, not have in mind that conviction and persuasion which is brought about by the use of many words. We have to consider only that adduction of facts and explanation, simple or complex, in a more or less skilful, intentional or unintentional manner, by means of which we are convinced at least for a moment. The variety of such conviction is well known to experience.

“The naïveté of the first glance often takes the prize from scholarship. All hasty, decisive judgment betrays, when it becomes habitual, superficiality of observation and impiety against the essential character of particular facts. Children know as completely determined and certain a great deal which is doubtful to the mature man” (V. Volkmar).

So, frequently, the simplest thing we are told gets its value from the manner of telling, or from the person of the narrator. And inasmuch as we ourselves are much more experienced and skilful in arranging and grouping facts than are our witnesses and the accused, it often happens that we persuade these people and that is the matter which wants consideration.

Nobody will assert that it will occur to any judge to persuade a witness to anything which he does not thoroughly believe, but we know how often we persuade ourselves to some matter, and nothing is more conceivable than that we might like to see other people agree with us about it. I believe that the criminalist, because, let us say, of his power, as a rule takes his point of view too lightly. Every one of us, no doubt, has often begun his work in a small and inefficient manner, has brought it along with mistakes and scantiness and when finally he has reached a somewhat firm ground, he has been convinced by his failures and mistakes of his ignorance and inadequacy. Then he expected that this conviction would be obvious also to other people whom he was examining. But this obviousness is remarkably absent, and all the mistakes, cruelties, and miscarriages of justice, have not succeeded in robbing it of the dignity it possesses in the eyes of the nation. Perhaps the goodwill which may be presupposed ought to be substituted for the result, but it is a fact that the layman presupposes much more knowledge, acuteness, and power in the criminalist than he really possesses. Then again, it is conceivable that a single word spoken by the judge has more weight than it should have, and then when a real persuasion—evidently in the best sense of the word—is made use of, it must be influential. I am certain that every one of us has made the frightful observation that by the end of the examination the witness has simply taken the point of view of the examiner, and the worst thing about this is that the witness still thinks that he is thinking in his own way.

The examiner knows the matter in its relation much better, knows how to express it more beautifully, and sets pretty theories going. The witness, to whom the questions are suggestive, becomes conceited, likes to think that he himself has brought the matter out so excellently, and therefore is pleased to adopt the point of view and the theories of the examiner who has, in reality, gone too far in his eagerness. There is less danger of this when educated people are examined for these are better able to express themselves; or again when women are examined for these are too obstinate to be persuaded, but with the great majority the danger is great, and therefore the criminalist can not be told too often how necessary it is that he shall meet his witness with the least conceivable use of eloquence.

Forensic persuasion is of especial importance and has been considered so since classical days, whether rightly, is another question. The orations of state prosecutors and lawyers for the defense, when made before scholarly judges, need not be held important. If individuals are ever asked whether they were persuaded or made doubtful by the prosecutor or his opponent they indicate very few instances. A scholarly and experienced judge who has not drawn any conclusions about the case until the evidence was all in need hardly pay much attention to the pleaders. It may indeed be that the prosecution or defense may belittle or intensify one or another bit of evidence which the bench might not have thought of; or they may call attention to some reason for severity or mercy. But on the one hand if this is important it will already have been touched in the adduction of evidence, and on the other hand such points are generally banal and indifferent to the real issue in the case. If this be not so it would only indicate that either we need a larger number of judges, or even when there are many judges that one thing or another may be overlooked.

But with regard to the jury the case is quite different; it is easily influenced and more than makes up for the indifference of the bench. Whoever takes the trouble to study the faces of the jury during trial, comes to the conclusion that the speeches of the prosecution and defense are the most important things in the trial, that they absorb most of the attention of the jury, and that the question of guilt or innocence does not depend upon the number and weight of the testimony but upon the more or less skilful interpretation of it. This is a reproach not to the jury but to those who demand from it a service it can not render. It is first necessary to understand how difficult the conduct of a trial is. In itself the conduct of a jury trial is no art, and when compared with other tasks demanded of the criminalist may be third or fourth in difficulty. What is difficult is the determination of the chronological order in which to present evidence, i.e., the drawing of the brief. If the brief is well drawn, everything develops logically and psychologically in a good way and the case goes on well; but it is a great and really artistic task to draw this brief properly. There are only two possibilities. If the thing is not done, or the brief is of no use, the case goes on irrelevantly, illogically and unintelligibly and the jury can not understand what is happening. If the trick is turned, however, then like every art it requires preparation and intelligence. And the jury do not possess these, so that the most beautiful work of art passes by them without effect. They therefore must turn their attention, to save what can be saved, upon the orations of the prosecution and defense. These reproduce the evidence for them in some intelligible fashion and the verdict will be innocence or guilt according to the greater intelligence of one or the other of the contending parties. Persuasiveness at its height, Hume tells us, leaves little room for intelligence and consideration. It addresses itself entirely to the imagination and the affections, captures the well-inclined auditors, and dominates their understanding. Fortunately this height is rarely reached. In any event, this height, which also dominates those who know the subject, will always be rare, yet the jury are not people of knowledge and hence dominations ensue, even through attempts at persuasiveness which have attained no height whatever. Hence the great danger.

The only help against this is in the study by the presiding justice, not as lawyer but as psychologist, of the faces of the jury while the contending lawyers make their addresses. He must observe very narrowly and carefully every influence exercised by the speeches, which is irrelevant to the real problem, and then in summing up call it to the attention of the jury and bring them back to the proper point of view. The ability to do this is very marvelous, but it again is an exceedingly difficult performance.

Nowadays persuadability is hardly more studied but anybody who has empirically attained some proficiency in it has acquired the same tricks that are taught by theory. But these must be known if they are to be met effectively. Hence the study of the proper authors can not be too much recommended. Without considering the great authors of the classical period, especially Aristotle and Cicero, there are many modern ones who might be named.

Section 31. (i) Inference and Judgment.

The judgment to be discussed in the following section is not the judgment of the court but the more general judgment which occurs in any perception. If we pursue our tasks earnestly we draw from the simplest cases innumerable inferences and we receive as many inferences from those we examine. The correctness of our work depends upon the truth of both. I have already indicated how very much of the daily life passes as simple and invincible sense-perception even into the determination of a sentence, although it is often no more than a very complicated series of inferences each of which may involve a mistake even if the perception itself has been correct. The frequency with which an inference is made from sense-perception is the more astonishing inasmuch as it exceeds all that the general and otherwise valid law of laziness permits. In fact, it contradicts that law, though perhaps it may not do so, for a hasty inference from insufficient premises may be much more comfortable than more careful observation and study. Such hasty inference is made even with regard to the most insignificant things. In the course of an investigation we discover that we have been dealing only with inferences and that our work therefore has been for nothing. Then again, we miss that fact, and our results are false and their falsehood is rarely sought in these petty mistakes. So the witness may have “seen” a watch in such and such a place when in reality he has only heard a noise that he took for the ticking of a watch and hence inferred that there had really been a watch, that he had seen it, and finally believed that he had seen it. Another witness asserts that X has many chickens; as a matter of fact he has heard two chickens cluck and infers a large number. Still another has seen footprints of cattle and speaks of a herd, or he knows the exact time of a murder because at a given time he heard somebody sigh, etc. There would be little difficulty if people told us how they had inferred, for then a test by means of careful questions would be easy enough—but they do not tell, and when we examine ourselves we discover that we do exactly the same thing and often believe and assert that we have seen or heard or smelt or felt although we have only inferred these things.[153] Here belong all cases of correct or partly correct inference and of false inference from false sense-perception. I recall the oft-cited story in which a whole judicial commission smelt a disgusting odor while a coffin was being exhumed only to discover that it was empty. If the coffin, for one reason or another, had not been opened all those present would have taken oath that they had an indubitable perception although the latter was only inferred from its precedent condition.

Exner[154] cites the excellent example in which a mother becomes frightened while her child cries, not because the cry as such sounds so terrible as because of its combination with the consciousness that it comes from her own child and that something might have happened to it. It is asserted, and I think rightly, that verbal associations have a considerable share in such cases. As Stricker[155] expresses it, the form of any conceptual complex whatever, brings out its appropriate word. If we see the thing watch, we get the word watch. If we see a man with a definite symptom of consumption the word tuberculosis occurs at once. The last example is rather more significant because when the whole complex appears mistakes are more remote than when merely one or another “safe” symptom permits the appearance of the word in question. What is safe to one mind need not be so to another, and the notion as to the certainty of any symptom changes with time and place and person. Mistakes are especially possible when people are so certain of their “safe” symptoms that they do not examine how they inferred from them. This inference, however, is directly related to the appearance of the word. Return to the example mentioned above, and suppose that A has discovered a “safe” symptom of consumption in B and the word tuberculosis occurs to him. But the occurrence does not leave him with the word merely, there is a direct inference “B has tuberculosis.” We never begin anything with the word alone, we attach it immediately to some fact and in the present case it has become, as usual, a judgment. The thought-movement of him who has heard this judgment, however, turns backward and he supposes that the judge has had a long series of sense-perceptions from which he has derived his inference. And in fact he has had only one perception, the reliability of which is often questionable.

Then there is the additional difficulty that in every inference there are leaps made by each inferer according to his character and training. And the maker does not consider whether the other fellow can make similar leaps or whether his route is different. E. g., when an English philosopher says, “We really ought not to expect that the manufacture of woolens shall be perfected by a nation which knows no astronomy,”—we are likely to say that the sentence is silly; another might say that it is paradoxical and a third that it is quite correct, for what is missing is merely the proposition that the grade of culture made possible by astronomy is such as to require textile proficiency also. “In conversation the simplest case of skipping is where the conclusion is drawn directly from the minor premise. But many other inferences are omitted, as in the case of real thinking. In giving information there is review of the thinking of other people; women and untrained people do not do this, and hence the disconnectedness of their conversation.”[156] In this fact is the danger in examining witnesses, inasmuch as we involuntarily interpolate the missing details in the skipping inferences, but do it according to our own knowledge of the facts. Hence, a test of the correctness of the other man’s inference becomes either quite impossible or is developed coarsely. In the careful observation of leaping inferences made by witnesses—and not merely by women and the uneducated—it will be seen that the inference one might oneself make might either have been different or have proceeded in a different way. If, then, all the premises are tested a different result from that of the witness is obtained. It is well known how identical premises permit of different conclusions by different people.

In such inferences certain remarkable things occur which, as a rule, have a given relation to the occupation of the witness. So, e.g., people inclined to mathematics make the greatest leaps, and though these may be comparatively and frequently correct, the danger of mistake is not insignificant when the mathematician deals in his mathematical fashion with unmathematical things.

Another danger lies in the testimony of witnesses who have a certain sense of form in representation and whose inferential leaps consists in their omitting the detailed expression and in inserting the notion of form instead. I learned of this notable psychosis from a bookkeeper of a large factory, who had to provide for the test of numberless additions. It was his notion that if we were to add two and three are five, and six are eleven, and seven are eighteen we should never finish adding, and since the avoidance of mistakes requires such adding we must so contrive that the image of two and three shall immediately call forth the image of five. Now this mental image of five is added with the actual six and gives eleven, etc. According to this we do not add, we see only a series of images, and so rapidly that we can follow with a pencil but slowly. And the images are so certain that mistake is impossible. “You know how 9 looks? Well, just as certainly we know what the image of 27 and 4 is like; the image of 31 occurs without change.”

This, as it happens, is a procedure possible only to a limited type, but this type occurs not only among bookkeepers. When any one of such persons unites two events he does not consider what may result from such a union; he sees, if I may say so, only a resulting image. This image, however, is not so indubitably certain as in the case of numbers; and it may take all kinds of forms, the correctness of which is not altogether probable. E. g., the witness sees two forms in the dark and the flash of a knife and hears a cry. If he belongs to the type under discussion he does not consider that he might have been so frightened by the flashing knife as to have cried out, or that he had himself proceeded to attack with a stick and that the other fellow did the yelling, or that a stab or cut had preceded the cry—no, he saw the image of the two forms and the knife and he heard the cry and these leap together into an image, i.e., one of the forms has a cut above his brow. And these leaps occur so swiftly and with such assurance that the witness in question often believes himself to have seen what he infers and swears to it.

There are a great many similar processes at the bottom of impressions that depend only upon swift and unconscious inference. Suppose, e.g., that I am shown the photograph of a small section of a garden, through which a team is passing. Although I observe the image of only a small portion of the garden and therefore have no notion of its extent, still, in speaking of it, I shall probably speak of a very big garden. I have inferred swiftly and unconsciously that in the fact that a wagon and horses were present in the pictured portion of the garden, is implied great width of road, for even gardens of average size do not have such wide roads as to admit wagons; the latter occurring only in parks and great gardens. Hence my conclusion: the garden must be very big. Such inferences[157] are frequent, whence the question as to the source and the probability of the witness’s information, whether it is positive or only an impression. Evidently such an impression may be correct. It will be correct often, inasmuch as impressions occur only when inferences have been made and tested repeatedly. But it is necessary in any case to review the sequence of inferences which led to this impression and to examine their correctness. Unfortunately the witness is rarely aware whether he has perceived or merely inferred.

Examination is especially important when the impression has been made after the observation of a few marks or only a single one and not very essential one at that. In the example of the team the impression may have been attained by inference, but frequently it will have been attained through some unessential, purely personal, determinative characteristic. “Just as the ancient guest recognizes his friend by fitting halves of the ring, so we recognize the object and its constitution from one single characteristic, and hence the whole vision of it is vivified by that characteristic.”[158]

All this is very well if no mistakes are made. When Tertullian said, “Credo quia impossibile est,” we will allow honesty of statement to this great scholar, especially as he was speaking about matters of religion, but when Socrates said of the works of Heraclitus the Obscure: “What I understand of it is good; I think that what I do not understand is also good”—he was not in earnest. Now the case of many people who are not as wise as Tertullian and Socrates is identical with theirs. Numerous examinations of witnesses made me think of Tertullian’s maxim, for the testimonies presented the most improbable things as facts. And when they even explained the most unintelligible things I thought: “And what you do not understand is also good.”

This belief of uncultured people in their own intelligence has been most excellently portrayed by Wieland in his immortal “Abderites.” The fourth philosopher says: “What you call the world is essentially an infinite series of worlds which envelop one another like the skin of an onion.” “Very clear,” said the Abderites, and thought they understood the philosopher because they knew perfectly well what an onion looked like. The inference which is drawn from the comprehension of one term in a comparison to the comprehension of the other is one of the most important reasons for the occurrence of so many misunderstandings. The example, as such, is understood, but its application to the assertion and the question whether the latter is also made clear by the example are forgotten. This explains the well known and supreme power of examples and comparisons, and hence the wise of all times have used comparisons in speaking to the poor in spirit. Hence, too, the great effect of comparisons, and also the numerous and coarse misunderstandings and the effort of the untrained and unintelligent to clarify those things they do not understand by means of comparisons. Fortunately they have, in trying to explain the thing to other people, the habit of making use of these difficultly discovered comparisons so that the others, if they are only sufficiently observant, may succeed in testing the correctness of the inference from one term in a comparison to the other. We do this frequently in examining witnesses, and we discover that the witness has made use of a figure to clarify some unintelligible point and that he necessarily understands it since it lies within the field of his instruments of thought. But what is compared remains as confused to him as before. The test of it, therefore, is very tiring and mainly without results, because one rarely succeeds in liberating a man from some figure discovered with difficulty. He always returns to it because he understands it, though really not what he compares. But what is gained in such a case is not little, for the certainty that, so revealed, the witness does not understand the matter in hand, easily determines the value of his testimony.

The fullness of the possibilities under which anything may be asserted is also of importance in this matter. The inference that a thing is impossible is generally made by most people in such wise that they first consider the details of the eventualities they already know, or immediately present. Then, when these are before them, they infer that the matter is quite impossible—and whether one or more different eventualities have missed of consideration, is not studied at all. Our kindly professor of physics once told us: “To-day I intended to show you the beautiful experiments in the interference of light—but it can not be observed in daylight and when I draw the curtains you raise rough-house. The demonstration is therefore impossible and I take the instruments away.” The good man did not consider the other eventuality, that we might be depended upon to behave decently even if the curtains were drawn.

Hence the rule that a witness’s assertion that a thing is impossible must never be trusted. Take the simplest example. The witness assures us that it is impossible for a theft to have been committed by some stranger from outside. If you ask him why, he will probably tell you: “Because the door was bolted and the windows barred.” The eventuality that the thief might have entered by way of the chimney, or have sent a child between the bars of the window, or have made use of some peculiar instrument, etc., are not considered, and would not be if the question concerning the ground of the inference had not been put.

We must especially remember that we criminalists “must not dally with mathematical truth but must seek historical truth. We start with a mass of details, unite them, and succeed by means of this union and test in attaining a result which permits us to judge the existence and the characteristics of past events.” The material of our work lies in the mass of details, and the manner and reliability of its presentation determines the certainty of our inferences.

Seen more closely the winning of this material may be described as Hume describes it:[159] “If we would satisfy ourselves, therefore, concerning the nature of that evidence which assures us of matters of fact, we must inquire how we arrive at the knowledge of cause and effect. I shall venture to affirm as a general proposition which admits of no exception, that the knowledge of this relation is not, in any instance, attained by reasonings a priori; but arises entirely from experience, when we find that any particular objects are constantly conjoined with each other; ... nor can our reason, unassisted by experience, ever draw any inference concerning real existence and matter of fact.”

In the course of his explanation Hume presents two propositions,

(1) I have found that such an object has always been attended with such an effect.

(2) I foresee that other objects which are in appearance similar, will be attended with similar effects.

He goes on: “I shall allow, if you please, that the one proposition may justly be inferred from the other; I know in fact that it always is inferred. But if you insist that the inference is made by a chain of reasoning, I desire you to produce that chain of reasoning. The connection between these propositions is not intuitive. There is required a medium which may enable the mind to draw such an inference, if, indeed, it be drawn by reasoning and argument. What the medium is, I must confess, passes my comprehension; and it is incumbent on those to produce it who assert that it exists, and is the origin of all our conclusions concerning matters of fact.”

If we regard the matter more closely we may say with certainty: This medium exists not as a substance but as a transition. When I speak in the proposition of “such an object,” I already have “similar” in mind, inasmuch as there is nothing absolutely like anything else, and when I say in the first proposition, “such an object,” I have already passed into the assertion made in the second proposition.

Suppose that we take these propositions concretely:

(1) I have discovered that bread made of corn has a nourishing effect.

(2) I foresee that other apparently similar objects, e.g., wheat, will have a like effect.

I could not make various experiments with the same corn in case (1). I could handle corn taken as such from one point of view, or considered as such from another, i.e., I could only experiment with very similar objects. I can therefore make these experiments with corn from progressively remoter starting points, or soils, and finally with corn from Barbary and East Africa, so that there can no longer be any question of identity but only of similarity. And finally I can compare two harvests of corn which have less similarity than certain species of corn and certain species of wheat. I am therefore entitled to speak of identical or similar in the first proposition as much as in the second. One proposition has led into another and the connection between them has been discovered.

The criminological importance of this “connection” lies in the fact that the correctness of our inferences depends upon its discovery. We work continuously with these two Humian propositions, and we always make our assertion, first, that some things are related as cause and effect, and we join the present case to that because we consider it similar. If it is really similar, and the connection of the first and the second proposition are actually correct, the truth of the inference is attained. We need not count the unexplained wonders of numerical relations in the result. D’Alembert asserts: “It seems as if there were some law of nature which more frequently prevents the occurrence of regular than irregular combinations; those of the first kind are mathematically, but not physically, more probable. When we see that high numbers are thrown with some one die, we are immediately inclined to call that die false.” And John Stuart Mill adds, that d’Alembert should have set the problem in the form of asking whether he would believe in the die if, after having examined it and found it right, somebody announced that ten sixes had been cast with it.

We may go still further and assert that we are generally inclined to consider an inference wrong which indicates that accidental matters have occurred in regular numerical relation. Who believes the hunter’s story that he has shot 100 hares in the past week, or the gambler’s that he has won 1000 dollars; or the sick man’s, that he was sick ten times? It will be supposed at the very least that each is merely indicating an approximately round sum. Ninety-six hares, 987 dollars, and eleven illnesses will sound more probable. And this goes so far that during examinations, witnesses are shy of naming such “improbable ratios,” if they at all care to have their testimony believed. Then again, many judges are in no wise slow to jump at such a number and to demand an “accurate statement,” or even immediately to decide that the witness is talking only “about.” How deep-rooted such views are is indicated by the circumstance that bankers and other merchants of lottery tickets find that tickets with “pretty numbers” are difficult to sell. A ticket of series 1000, number 100 is altogether unsalable, for such a number “can not possibly be sold.” Then again, if one has to count up a column of accidental figures and the sum is 1000, the correctness of the sum is always doubted.

Here are facts which are indubitable and unexplained. We must therefore agree neither to distrust so-called round numbers, nor to place particular reliance on quite irregular figures. Both should be examined.

It may be that the judgment of the correctness of an inference is made analogously to that of numbers and that the latter exercise an influence on the judgment which is as much conceded popularly as it is actually combated. Since Kant, it has been quite discovered that the judgment that fools are in the majority must lead through many more such truths in judging—and it is indifferent whether the judgment dealt with is that of the law court or of a voting legislature or mere judgments as such.

Schiel says, “It has been frequently asserted that a judgment is more probably correct according to the number of judges and jury.” Quite apart from the fact that the judge is less careful, makes less effort, and feels less responsibility when he has associates, this is a false inference from an enormous average of cases which are necessarily remote from any average whatever. And when certain prejudices or weaknesses of mind are added, the mistake multiplies. Whoever accurately follows, if he can avoid getting bored, the voting of bodies, and considers by themselves individual opinions about the subject, they having remained individual against large majorities and hence worthy of being subjected to a cold and unprejudiced examination, will learn some rare facts. It is especially interesting to study the judgment of the full bench with regard to a case which has been falsely judged; surprisingly often only a single individual voice has spoken correctly. This fact is a warning to the judge in such cases carefully to listen to the individual opinion and to consider that it is very likely to deserve study just because it is so significantly in the minority.

The same thing is to be kept in mind when a thing is asserted by a large number of witnesses. Apart from the fact that they depend upon one another, that they suggest to one another, it is also easily possible, especially if any source of error is present, that the latter shall have influenced all the witnesses.

Whether a judgment has been made by a single judge or is the verdict of any number of jurymen is quite indifferent since the correctness of a judgment does not lie in numbers. Exner says, “The degree of probability of a judgment’s correctness depends upon the richness of the field of the associations brought to bear in establishing it. The value of knowledge is judicially constituted in this fact, for it is in essence the expansion of the scope of association. And the value is proportional to the richness of the associations between the present fact and the knowledge required.” This is one of the most important of the doctrines we have to keep in mind, and it controverts altogether those who suppose that we ought to be satisfied with the knowledge of some dozens of statutes, a few commentaries, and so and so many precedents.

If we add that “every judgment is an identification and that in every judgment we assert that the content represented is identical in spite of two different associative relationships,”[160] it must become clear what dangers we undergo if the associative relationships of a judge are too poor and narrow. As Mittermaier said seventy years ago: “There are enough cases in which the weight of the evidence is so great that all judges are convinced of the truth in the same way. But in itself what determines the judgment is the essential character of him who makes it.” What he means by essential character has already been indicated.

We have yet to consider the question of the value of inferences made by a witness from his own combinations of facts, or his descriptions. The necessity, in such cases, of redoubled and numerous examinations is often overlooked. Suppose, for example, that the witness does not know a certain important date, but by combining what he does know, infers it to have been the second of June, on which day the event under discussion took place. He makes the inference because at the time he had a call from A, who was in the habit of coming on Wednesdays, but there could be no Wednesday after June seventh because the witness had gone on a long journey on that day, and it could not have been May 26 because this day preceded a holiday and the shop was open late, a thing not done on the day A called. Nor, moreover, could the date have been May 20, because it was very warm on the day in question, and the temperature began to rise only after May 20. In view of these facts the event under discussion must have occurred upon June 2nd and only on that day.

As a rule, such combinations are very influential because they appear cautious, wise and convincing. They impose upon people without inclination toward such processes. More so than they have a right to, inasmuch as they present little difficulty to anybody who is accustomed to them and to whom they occur almost spontaneously. As usually a thing that makes a great impression upon us is not especially examined, but is accepted as astounding and indubitable, so here. But how very necessary it is carefully to examine such things and to consider whether the single premises are sound, the example in question or any other example will show. The individual dates, the facts and assumptions may easily be mistaken, and the smallest oversight may render the result false, or at least not convincing.

The examination of manuscripts is still more difficult. What is written has a certain convincing power, not only on others but on the writer, and much as we may be willing to doubt and to improve what has been written immediately or at most a short time ago, a manuscript of some age has always a kind of authority and we give it correctness cheaply when that is in question. In any event there regularly arises in such a case the problem whether the written description is quite correct, and as regularly the answer is a convinced affirmative. It is impossible to give any general rule for testing such affirmation. Ordinarily some clearness may be attained by paying attention to the purpose of the manuscript, especially in order to ascertain its sources and the personality of the writer. There is much in the external form of the manuscript. Not that especial care and order in the notes are particularly significant; I once published the accounts of an old peasant who could neither read nor write, and his accounts with a neighbor were done in untrained but very clear fashion, and were accepted as indubitable in a civil case. The purposiveness, order, and continuity of a manuscript indicate that it was not written after the event; and are therefore, together with the reason for having written it and obviously with the personality of the writer, determinative of its value.

Section 32.(j) Mistaken Inferences.

It is true, as Huxley says, that human beings would have made fewer mistakes if they had kept in mind their tendency to false judgments which depend upon extraordinary combinations of real experiences. When people say: I felt, I heard, I saw this or that, in 99 cases put of 100 they mean only that they have been aware of some kind of sensation the nature of which they determine in a judgment. Most erroneous inferences ensue in this fashion. They are rarely formal and rarely arise by virtue of a failure to use logical principles; their ground is the inner paucity of a premise, which itself is erroneous because of an erroneous perception or conception.[161] As Mill rightly points out, a large portion of mankind make mistakes because of tacit assumptions that the order of nature and the order of knowledge are identical and that things must exist as they are thought, so that when two things can not be thought together they are supposed not to exist together, and the inconceivable is supposed to be identical with the non-existent. But what they do not succeed in conceiving must not be confused with the absolutely inconceivable. The difficulty or impossibility of conceiving may be subjective and conditional, and may prevent us from understanding the relation of a series of events only because some otherwise proximate condition is unknown or overlooked. Very often in criminal cases when I can make no progress in some otherwise simple matter, I recall the well known story of an old peasant woman who saw the tail of a horse through an open stable door and the head of another through another door several yards away, and because the colors of both head and tail were similar, was moved to cry out: “Dear Lord, what a long horse!” The old lady started with the presupposition that the rump and the head of the two horses belonged to one, and could make no use of the obvious solution of the problem of the inconceivably long horse by breaking it in two.

Such mistakes may be classified under five heads.[162]

(1) Aprioristic mistakes. (Natural prejudices).

(2) Mistakes in observation.

(3) Mistakes in generalization. (When the facts are right and the inferences wrong).

(4) Mistakes of confusion. (Ambiguity of terms or mistakes by association).

(5) Logical fallacies.

All five fallacies play important rôles in the lawyer’s work.

We have very frequently to fight natural prejudices. We take certain classes of people to be better and others to be worse than the average, and without clearly expressing it we expect that the first class will not easily do evil nor the other good. We have prejudices about some one or another view of life; some definition of justice, or point of view, although we have sufficient opportunity to be convinced of their incorrectness. We have a similar prejudice in trusting our human knowledge, judgment of impressions, facts, etc., far too much, so far indeed, that certain relations and accidents occurring to any person we like or dislike will determine his advantage or disadvantage at our hands.

Of importance under this heading, too, are those inferences which are made in spite of the knowledge that the case is different; the power of sense is more vigorous than that of reflection. As Hartmann expresses it: “The prejudices arising from sensation, are not conscious judgments of the understanding but instinctively practical postulates, and are, therefore, very difficult to destroy, or even set aside by means of conscious consideration. You may tell yourself a thousand times that the moon at the horizon is as big as at the zenith—nevertheless you see it smaller at the zenith.” Such fixed impressions we meet in every criminal trial, and if once we have considered how the criminal had committed a crime we no longer get free of the impression, even when we have discovered quite certainly that he had no share in the deed. The second type of fallacy—mistakes in observation—will be discussed later under sense perception and similar matters.

Under mistakes of generalization the most important processes are those of arrangement, where the environment or accompanying circumstances exercise so determinative an influence that the inference is often made from them alone and without examination of the object in question. The Tanagra in the house of an art-connoisseur I take to be genuine without further examination; the golden watch in the pocket of a tramp to be stolen; a giant meteor, the skeleton of an iguana, a twisted-looking Nerva in the Royal Museum of Berlin, I take to be indubitably original, and indubitably imitations in the college museum of a small town. The same is true of events: I hear a child screeching in the house of the surly wife of the shoemaker so I do not doubt that she is spanking it; in the mountains I infer from certain whistles the presence of chamois, and a single long drawn tone that might be due to anything I declare to have come from an organ, if a church is near by.

All such processes are founded upon experience, synthesis, and, if you like, prejudices. They will often lead to proper conclusions, but in many cases they will have the opposite effect. It is a frequently recurring fact that in such cases careful examination is most of all necessary, because people are so much inclined to depend upon “the first, always indubitably true impression.” The understanding has generalized simply and hastily, without seeking for justification.

The only way of avoiding great damage is to extract the fact in itself from its environment and accompanying circumstance, and to study it without them. The environment is only a means of proof, but no proof, and only when the object or event has been validated in itself may we adduce one means of proof after another and modify our point of view accordingly. Not to do so, means always to land upon false inferences, and what is worse, to find it impossible upon the recognition of an error later on, to discover at what point it has occurred. By that time it has been buried too deep in the heap of our inferential system to be discoverable.

The error of confusion Mill reduces especially to the unclear representation of what proof is, i.e., to the ambiguity of words. We rarely meet such cases, but when we do, they occur after we have compounded concepts and have united rather carelessly some symbol with an object or an event which ought not to have been united, simply because we were mistaken about its importance. A warning example may be found in the inference which is made from the sentence given a criminal because of “identical motive.” The Petitio, the Ignorantia, etc., belong to this class. The purely logical mistakes or mistakes of syllogism do not enter into these considerations.

Section 33. (k) Statistics of the Moral Situation.

Upon the first glance it might be asserted that statistics and psychology have nothing to do with each other. If, however, it is observed that the extraordinary and inexplicable results presented by statistics of morals and general statistics influence our thought and reflection unconditionally, its importance for criminal psychology can not be denied. Responsibility, abundance of criminals, their distribution according to time, place, personality, and circumstances, the regularity of their appearance, all these have so profound an influence upon us both essentially and circumstantially that even our judgments and resolutions, no less than the conduct and thought of other people whom we judge, are certainly altered by them.[163] Moreover, probability and statistics are in such close and inseparable connection that we may not make use of or interpret the one without the other. Eminent psychological contributions by Münsterberg show the importance the statistical problems have for psychology. This writer warns us against the over-valuation of the results of the statistics of morality, and believes that its proper tendencies will be discovered only much later. In any event the real value of statistical synthesis and deduction can be discovered only when it is closely studied. This is particularly true with regard to criminal conditions. The works of many authors[164] teach us things that would not otherwise be learned, and they would not be dealt with here if only a systematic study of the works themselves could be of use. We speak here only of their importance for our own discipline. Nobody doubts that there are mysteries in the figures and figuring of statistics. We admit honestly that we know no more to-day than when Paul de Decker discussed Quetelet’s labors in statistics of morality in the Brussels Academy of Science, and confessed what a puzzle it was that human conduct, even in its smallest manifestations, obeyed in their totality constant and immutable laws. Concerning this curious fact Adolf Wagner says: “If a traveler had told us something about some people where a statute determines exactly how many persons per year shall marry, die, commit suicide, and crimes within certain classes,—and if he had announced furthermore that these laws were altogether obeyed, what should we have said? And as a matter of fact the laws are obeyed all the world over.”[165]

Of course the statistics of morality deal with quantities not qualities, but in the course of statistical examination the latter are met with. So, e.g., examinations into the relation of crime to school-attendance and education, into the classes that show most suicides, etc., connect human qualities with statistical data. The time is certainly not far off when we shall seek for the proper view of the probability of a certain assumption with regard to some rare crime, doubtful suicide, extraordinary psychic phenomena, etc., with the help of a statistical table. This possibility is made clearer when the inconceivable constancy of some figures is considered. Suppose we study the number of suicides since 1819 in Austria, in periods of eight years. We find the following figures, 3000, 5000, 6000, 7000, 9000, 12000, 15000—i.e., a regular increase which is comparable to law.[166] Or suppose we consider the number of women, who, in the course of ten continuous years in France, shot themselves; we find 6, 6, 7, 7, 6, 6, 7; there is merely an alternation between 6 and 7. Should not we look up if in some one year eight or nine appeared? Should not we give some consideration to the possibility that the suicide is only a pretended one? Or suppose we consider the number of men who have drowned themselves within the same time: 280, 285, 292, 276, 257, 269, 258, 276, 278, 287,—Wagner says rightly of such figures “that they contain the arithmetical relation of the mechanism belonging to a moral order which ought to call out even greater astonishment than the mechanism of stellar systems.”

Still more remarkable are the figures when they are so brought together that they may be seen as a curve. It is in this way that Drobisch brings together a table which distributes crime according to age. Out of a thousand crimes committed by persons between the ages of:

AGAINST PROPERTY AGAINST PERSONS

Less than 16 years 2 0.53

16-21 105 28

21-25 114 50

25-30 101 48

30-35 93 41

35-40 78 31

40-45 63 25

45-50 48 19

50-55 34 15

55-60 24 12

60-65 19 11

65-70 14 8

70-80 8 5

More than 80 2 2

Through both columns a definite curve may be drawn which grows steadily and drops steadily. Greater mathematical certainty is almost unthinkable. Of similar great importance is the parallelization of the most important conditions. When, e.g., suicides in France, from 1826 to 1870 are taken in series of five years we find the figures 1739, 2263, 2574, 2951, 3446, 3639, 4002, 4661, 5147; if now during that period the population has increased from 30 to only 36 millions other determining factors have to be sought.[167]

Again, most authorities as quoted by Gutberlet,[168] indicate that most suicides are committed in June, fewest in December; most at night, especially at dawn, fewest at noon, especially between twelve and two o’clock. The greatest frequency is among the half-educated, the age between sixty and seventy, and the nationality Saxon (Oettingen).

The combination of such observations leads to the indubitable conclusion that the results are sufficiently constant to permit making at least an assumption with regard to the cases in hand. At present, statistics say little of benefit with regard to the individual; J. S. Mill is right in holding that the death-rate will help insurance companies but will tell any individual little concerning the duration of his life. According to Adolf Wagner, the principal statistical rule is: The law has validity when dealing with great numbers; the constant regularity is perceivable only when cases are very numerous; single cases show many a variation and exception. Quetelet has shown the truth of this in his example of the circle. “If you draw a circle on the blackboard with thick chalk, and study its outline closely in small sections, you will find the coarsest irregularities; but if you step far back and study the circle as a whole, its regular, perfect form becomes quite distinct.” But the circle must be drawn carefully and correctly, and one must not give way to sentimentality and tears when running over a fly’s legs in drawing. Emil du Bois-Reymond[169] says against this: “When the postmaster announces that out of 100,000 letters a year, exactly so and so many come unaddressed, we think nothing of the matter—but when Quetelet counts so and so many criminals to every 100,000 people our moral sense is aroused since it is painful to think that we are not criminals simply because somebody else has drawn the black spot.” But really there is as little regrettable in this fact as in the observation that every year so and so many men break their legs, and so and so many die—in those cases also, a large number of people have the good fortune not to have broken their legs nor to have died. We have here the irrefutable logic of facts which reveals nothing vexatious.

On the other hand, there is no doubt that our criminal statistics, to be useful, must be handled in a rather different fashion. We saw, in studying the statistics of suicide, that inferences with regard to individual cases could be drawn only when the material had been studied carefully and examined on all sides. But our criminological statistic is rarely examined with such thoroughness; the tenor of such examination is far too bureaucratic and determined by the statutes and the process of law. The criminalist gives the statistician the figures but the latter can derive no significant principles from them. Consider for once any official report on the annual results in the criminal courts in any country. Under and over the thousands and thousands of figures and rows of figures there is a great mass of very difficult work which has been profitable only in a very small degree. I have before me the four reports of a single year which deal with the activities of the Austrian courts and criminal institutions, and which are excellent in their completeness, correctness, and thorough revision. Open the most important,—the results of the administration of criminal law in the various departments of the country,—and you find everything recorded:—how many were punished here and how many there, what their crimes were, the percentage of condemned according to age, social standing, religion, occupation, wealth, etc.; then again you see endless tables of arrests, sentences, etc., etc. Now the value of all this is to indicate merely whether a certain regularity is discoverable in the procedure of the officials. Material psychologically valuable is rare. There is some energetic approximation to it in the consideration of culture, wealth, and previous sentences, but even these are dealt with most generally, while the basis and motive of the death-sentence is barely indicated. We can perceive little consideration of motives with regard to education, earlier life, etc., in their relation to sentencing. Only when statistics will be made to deal actually and in every direction with qualities and not merely with quantities will they begin to have a really scientific value.

Topic II. KNOWLEDGE.

Section 34.

Criminal law, like all other disciplines, must ask under what conditions and when we are entitled to say “we know.” The answer is far from being perennially identical, though it might have been expected that the conviction of knowledge would be ever united with identical conditions. The strange and significant difference is determined by the question whether the verdict, “we know,” will or will not have practical consequences. When we discuss some question like the place of a certain battle, the temperature of the moon, or the appearance of a certain animal in the Pliocene, we first assume that there is a true answer; reasons for and against will appear, the former increase in number, and suddenly we discover in some book the assurance that, “We know the fact.” That assurance passes into so and so many other books; and if it is untrue, no essential harm can be done.

But when science is trying to determine the quality of some substance, the therapeutic efficiency of some poison, the possibilities of some medium of communication, the applicability of some great national economic principle like free trade, then it takes much more time to announce, “We know that this is so and not otherwise.” In this case one sees clearly that tremendous consequences follow on the practical interpretation of “we know,” and therefore there is in these cases quite a different taxation of knowledge from that in cases where the practical consequences are comparatively negligible.

Our work is obviously one of concrete practical consequences. It contains, moreover, conditions that make imperfect knowledge equivalent to complete ignorance, for in delivering sentence every “no” may each time mean, “We know that he has not done it” or again, “We know that it is not altogether certain that he has done it.” Our knowledge in such cases is limited to the recognition of the confusion of the subject, and knowledge in its widest sense is the consciousness of some definite content; in this case, confusion. Here, as everywhere, knowledge is not identical with truth; knowledge is only subjective truth. Whoever knows, has reasons for considering things true and none against so considering them. Here, he is entitled to assume that all who recognize his knowledge will justify it. But, when even everybody justifies his knowledge, it can be justified only in its immediacy; to-morrow the whole affair may look different. For this reason we criminalists assert much less than other investigators that we seek the truth; if we presume to such an assertion, we should not have the institutions of equity, revision, and, in criminal procedure, retrial. Our knowledge, when named modestly, is only the innermost conviction that some matter is so and so according to human capacity, and “such and such a condition of things.” Parenthetically, we agree that “such and such a condition of things” may alter with every instant and we declare ourselves ready to study the matter anew if the conditions change. We demand material, but relative truth.

One of the acutest thinkers, J. R. von Mayer, the discoverer of the working principle of “conservation of energy,” says, “the most important, if not the only rule for real natural science is this: Always to believe that it is our task to know the phenomena before we seek explanation of higher causes. If a fact is once known in all its aspects, it is thereby explained and the duty of science fulfilled.” The author did not have us dry-souled lawyers in mind when he made this assertion, but we who modestly seek to subordinate our discipline to that of the correct one of natural science, must take this doctrine absolutely to heart. Every crime we study is a fact, and once we know it in all its aspects and have accounted for every little detail, we have explained it and have done our duty.

But the word explain does not lead us very far. It is mainly a matter of reducing the mass of the inexplicable to a minimum and the whole to its simplest terms. If only we succeed in this reduction! In most cases we substitute for one well-known term, not another still better one, but a strange one which may mean different things to different people. So again, we explain one event by means of another more difficult one. It is unfortunate that we lawyers are more than all others inclined to make unnecessary explanations, because our criminal law has accustomed us to silly definitions which rarely bring us closer to the issue and which supply us only with a lot of words difficult to understand instead of easily comprehensible ones. Hence we reach explanations both impossible and hard to make, explanations which we ourselves are often unwilling to believe. And again we try to explain and to define events which otherwise would have been understood by everybody and which become doubtful and uncertain because of the attempt. The matter becomes especially difficult when we feel ourselves unsure, or when we have discovered or expect contradiction. Then we try to convince ourselves that we know something, although at the beginning we were clearly enough aware that we knew nothing. We must not forget that our knowledge can attain only to ideas of things. It consists alone in the perception of the relation and agreement, or in the incompatibility and contradiction of some of our ideas. Our task lies exactly in the explication of these impressions, and the more thoroughly that is done the greater and more certain is the result. But we must never trust our own impressions merely. “When the theologian, who deals with the supersensible, has said all that, from his point of view, he can say, when the jurist, who represents those fundamental laws which are the result of social experience, has considered all reasons from his own point of view, the final authority in certain cases must be the physician who is engaged in studying the life of the body.”

I get this from Maudsley,[170] and it leads us to keep in mind that our knowledge is very one-sided and limited, and that an event is known only when all have spoken who possess especial knowledge of its type. Hence, every criminalist is required to found his knowledge upon that of the largest possible number of experts and not to judge or discuss any matter which requires especial information without having first consulted an expert with regard to it. Only the sham knows everything; the trained man understands how little the mind of any individual may grasp, and how many must coöperate in order to explain the very simplest things.

The complexity of the matter lies in the essence of the concept “to be.” We use the word “to be” to indicate the intent of all perceived and perceivable. “ ‘To be’ and ‘to know’ are identical in so far as they have identical content, and the content may be known?”[171]