A	>>	B	>>	C	>>	D	>>	E
F	>>	G	>>	H	>>	I	>>	J
K	>>	L	>>	M	>>	N	>>	O
P	>>	R	>>	S	>>	T	>>	U
V	>>	W	>>			X	>>	Z

Mitzi Perdue - "The Perdue Chicken Cookbook"

George Bernard Shaw - "Misalliance"

Sir Walter Scott - "The Talisman"

A. Light, of Waxhaw - "Rhymes of a Red Cross Man, by Robert W. Service"

Robin Hood

J >> J. Walker McSpadden >> Robin Hood





Section 2. (b) The Method of Natural Science.[1]

If now we ask how we are to plan our work, what method we are
to follow, we must agree that to establish scientifically the principles
of our discipline alone is not sufficient. If we are to make progress,
the daily routine also must be scientifically administered. Every
sentence, every investigation, every official act must satisfy the same
demand as that made of the entire juristic science. In this way only

[1] Cf. H. Gross's Archiv VI, 328 and VIII, 84.

can we rise above the mere workaday world of manual labor, with
its sense-dulling disgust, its vexatious monotony, and its frightful
menace against law and justice. While jurists merely studied the
language of dead laws, expounding them with effort unceasing, and,
one may complain, propounding more, we must have despaired of
ever being scientific. And this because law as a science painfully
sought justification in deduction from long obsolete norms and in
the explanation of texts. To jurisprudence was left only the empty
shell, and a man like Ihering[1] spoke of a ``circus for dialectico-
acrobatic tricks.''

Yet the scientific quality is right to hand. We need only to take
hold of the method, that for nearly a century has shown itself to
us the most helpful. Since Warnknig (1819)[2] told us, ``Jurisprudence
must become a natural science,'' men have rung changes upon
this battle cry (cf. Spitzer[3]). And even if, because misunderstood,
it led in some directions wrongly, it does seem as if a genuinely
scientific direction might be given to our doctrines and their application.
We know very well that we may not hurry. Wherever people
delayed in establishing the right thing and then suddenly tried for
it, they went in their haste too far. This is apparent not only in
the situations of life; it is visible, in the very recent hasty conclusions
of the Lombrosists, in their very good, but inadequate observations,
and unjustified and strained inferences. We are not to figure the
scientific method from these.[4] It is for us to gather facts and to
study them. The drawing of inferences we may leave to our more
fortunate successors. But in the daily routine we may vary this
procedure a little. We draw there _*particular_ inferences from correct
and simple observations. ``From facts to ideas,'' says ttingen.[5]
``The world has for several millenniums tried to subdue matter to
preconceptions and the world has failed. Now the procedure is
reversed.'' ``From facts to ideas''--there lies our road, let us
for once observe the facts of life without prejudice, without maxims
built on preconceptions; let us establish them, strip them of all
alien character. Then finally, when we find nothing more in the
least doubtful, we may theorize about them, and draw inferences,
modestly and with caution.

Every fundamental investigation must first of all establish the

[1] R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885.

[2] Warnkonig. Versuch einer Begrndung des Rechtes. Bonn 1819.

[3] H. Spitzer: ber das Verhltnis der Philosophie zu den organischen
Naturwissensehaften. Leipzig 1883.

[4] Cf. Gross's Archiv VIII 89.

[5] A. v. ttingen: Moralstatistik. Erlangen 1882.

nature of its subject matter. This is the maxim of a book, ``ber
die Dummheit''[1] (1886), one of the wisest ever written. The same
axiomatic proposition must dominate every legal task, but especially
every task of criminal law. It is possible to read thousands upon
thousands of testimonies and to make again this identical, fatiguing,
contrary observation: The two, witness and judge, have not defined
the nature of this subject; they have not determined what they
wanted of each other. The one spoke of one matter, the other of
another; but just what the thing really was that was to have been
established, the one did not know and the other did not tell him.
But the blame for this defective formulation does not rest with the
witness--formulation was the other man's business.

When the real issue is defined the essentially modern and scientific
investigation begins. Ebbinghaus,[2] I believe, has for our purpose
defined it best. It consists in trying to keep constant the complex
of conditions demonstrated to be necessary for the realization of a
given effect. It consists in varying these conditions, in isolating one
from the other in a numerically determinable order, and finally,
in establishing the accompanying changes with regard to the effect,
in a quantified or countable order.

I can not here say anything further to show that this is the sole
correct method of establishing the necessary principles of our science.
The aim is only to test the practicality of this method in the routine
of a criminal case, and to see if it is not, indeed, the only one by
which to attain complete and indubitable results. If it is, it must
_*be of use_ not only during the whole trial--not only in the testing
of collected evidence, but also in the testing of every individual
portion thereof, analyzed into its component elements.

Let us first consider the whole trial.

The _*effect_ is here the evidence of A's guilt. The complex conditions
for its establishment are the collective instruments in getting
evidence; the individual conditions are to be established by means
of the individual sources of evidence--testimony of witnesses,
examination of the premises, obduction, protocol, etc.

_The constantification of conditions_ now consists in standardizing
the present instance, thus: Whenever similar circumstances are
given, i. e.: the same instruments of evidence are present, the evidence
of guilt is established. Now the accompanying changes with
regard to the effect, i. e.: proof of guilt through evidence, have to

[1] Erdmann ber die Dummheit. 1886.

[2] Ebbinghaus: ber das Gedchtniss. Leipzig 1885.

be tested--therefore the individual conditions--i.e.: the individual
sources of evidence have to be established and their values
to be determined and _*varied_. Finally, the accompanying change in
effect (conviction by evidence) is to be tested. The last procedure
requires discussion; the rest is self evident. In our business isolation
is comparatively easy, inasmuch as any individual statement, any
visual impression, any effect, etc., may be abstracted without difficulty.
Much harder is the determination of its value. If, however,
we clearly recognize that it is necessary to express the exact value
of each particular source of evidence, and that the task is only to
determine comparative valuation, the possibility of such a thing, in
at least a sufficiently close degree of certainty, must be granted.
The valuation must be made in respect of two things--(1) its
_*reliability_ (subjective and relative); (2) its _*significance_ (objective and
absolute). On the one hand, the value of the evidence itself must
be tested according to the appraisement of the person who presents
it and of the conditions under which he is important; on the other,
what influence evidence accepted as reliable can exercise upon the
_*effect_, considered in and for itself. So then, when a testimony is
being considered, it must first be determined whether the witness
was able and willing to speak the truth, and further, what the importance
of the testimony may be in terms of the changes it may
cause in the _*organization_ of the case.

Of greatest importance and most difficult is the variation of conditions
and the establishment of the changes thereby generated,
with regard to the _*effect_,--i. e.: the critical interpretation of the
material in hand. Applied to a case, the problem presents itself
in this wise: I consider each detail of evidence by itself and cleared
of all others, and I vary it as often as it is objectively possible to do
so. Thus I suppose that each statement of the witness might be a
lie, entirely or in part; it might be incorrect observation, false
inference, etc.--and then I ask myself: Does the evidence of guilt,
the establishment of an especial trial, now remain just? If not, is
it just under other and related possible circumstances? Am I in
possession of these circumstances? If now the degree of apparent
truth is so far tested that these variations may enter and the accusation
still remain just, the defendant is convicted: but only under
these circumstances.

The same procedure here required for the conduct of a complete
trial, is to be followed also, in miniature, in the production
of particulars of evidence. Let us again construe an instance.

The _*effect_ now is the establishment of the objective correctness
of some particular point (made by statements of witnesses, looks,
etc.). The _*complex of conditions_ consists in the collection of these
influences which might render doubtful the correctness--i. e.,
dishonesty of witnesses, defective examination of locality, unreliability
of the object, ignorance of experts, etc. It is necessary
to know clearly which of these influences might be potent in the
case in hand, and to what degree. The _*standardization_ consists,
also this time, in the comparison of the conditions of the present
case with those of other cases. The _*variation_, again, consists in the
abstraction from the evidence of those details which might possibly
be incorrect, thus correcting it, from various points of view, and
finally, in observing the _*effect_ as it defines itself under this variety
of formulation.

This procedure, adopted in the preparation and judgment of
each new piece of evidence, excludes error as far as our means
conceivably permit. Only one thing more is needful--a narrow and
minute research into that order of succession which is of
indispensable importance in every natural science. ``Of all truths
concerning natural phenomena, those which deal with the order of
succession are for us the most important. Upon a knowledge of
them is grounded every intelligent anticipation of the future'' (J.
S. Mill).[1] The oversight of this doctrine is the largest cause of our
failures. We must, in the determination of evidence, cleave to it.
Whenever the question of influence upon the ``_*effect_'' is raised, the
problem of order is found invariably the most important. Mistakes
and impossibilities are in the main discovered only when the examination
of the order of succession has been undertaken.

In short: We have confined ourselves long enough to the mere
study of our legal canons. We now set out upon an exact consideration
of their material. To do this, obviously demands a retreat to
the starting-point and a beginning we ought to have made long ago;
but natural sciences, on which we model ourselves, have had to do
the identical thing and are now at it openly and honestly. Ancient
medicine looked first of all for the universal panacea and boiled
theriac; contemporary medicine dissects, uses the microscope, and
experiments, recognizes no panacea, accepts barely a few specifics.
Modern medicine has seen the mistake. But we lawyers boil our
theriac even nowadays and regard the most important study, the
study of reality, with arrogance.

[1] J. S. Mill: System of Logic.

Topic II. PSYCHOLOGIC LESSONS.

Section 3. (a) General Considerations.


Of the criminalist's tasks, the most important are those involving
his dealings with the other men who determine his work, with witnesses,
accused, jurymen, colleagues, etc. These are the most
pregnant of consequences. In every case his success depends on his
skill, his tact, his knowledge of human nature, his patience, and his
propriety of manner. Anybody who takes the trouble, may note
speedily the great differences in efficiency between those who do
and those who do not possess such qualities. That they are important
to witnesses and accused is undoubted. But this importance
is manifest to still others. The intercourse between various examining
judges and experts is a matter of daily observation. One judge
puts the question according to law and expects to be respected. He
does not make explicit how perfectly indifferent the whole affair is
to him, but experts have sufficient opportunity to take note of that
fact. The other narrates the case, explains to the experts its various
particular possibilities, finds out whether and what further elucidation
they demand, perhaps inquires into the intended manner and
method of the expert solution of the problem, informs himself of
the case by their means, and manifests especial interest in the difficult
and far too much neglected work of the experts. It may be
said that the latter will do their work in the one case as in the other,
with the same result. This would be true if, unfortunately, experts
were not also endowed with the same imperfections as other mortals,
and are thus far also infected by interest or indifference. Just
imagine that besides the examining magistrate of a great superior
court, every justice and, in addition, all the chiefs and officials
manifested equal indifference! Then even the most devoted experts
would grow cool and do only what they absolutely had to. But if
all the members of the same court are actuated by the same keen
interest and comport themselves as described, how different the
affair becomes! It would be impossible that even the indifferent,
and perhaps least industrious experts, should not be carried out of
themselves by the general interest, should not finally realize the
importance of their position, and do their utmost.

The same thing is true of the president, the jurymen and their
fellow-judges. It is observable that here and there a presiding justice
succeeds in boring all concerned during even criminal cases interesting

in themselves; the incident drags on, and people are interested only
in finally seeing the end of the matter. Other presiding justices
again, fortunately the majority, understand how to impart apparent
importance to even the simplest case. Whatever office anybody
may hold,--he and his mates are commissioned in the common
task, and should the thing come up for judgment, everybody does
his best. The difference here is not due to temperamental freshness
or tediousness; the result depends only upon a correct or incorrect
psychological handling of the participants. The latter must in
every single case be led and trained anew to interest, conscientiousness
and co-operation. In this need lies the educational opportunity
of the criminal judge. Whether it arises with regard to the
accused, the witness, the associate justice, or the expert, is all one;
it is invariably the same.

That knowledge of human nature is for this purpose most important
to the criminalist will be as little challenged as the circumstance
that such knowledge can not be acquired from books. Curiously
enough, there are not a few on the subject, but I suspect that
whoever studies or memorizes them, (such books as Pockel's,
Herz's, Meister's, Engel's, Jassoix's, and others, enumerated by
Volkmar) will have gained little that is of use. A knowledge of
human nature is acquired only (barring of course a certain talent
thereto) by persevering observation, comparison, summarization,
and further comparison. So acquired, it sets its possessor to the
fore, and makes him independent of a mass of information with
which the others have to repair their ignorance of mankind. This
is to be observed in countless cases in our profession. Whoever has
had to deal with certain sorts of swindlers, lying horsetraders,
antiquarians, prestidigitators, soon comes to the remarkable conclusion,
that of this class, exactly those who flourish most in their profession
and really get rich understand their trade the least. The horsedealer
is no connoisseur whatever in horses, the antiquarian can not
judge the value nor the age and excellence of antiquities, the cardsharp
knows a few stupid tricks with which, one might think, he
ought to be able to deceive only the most innocent persons. Nevertheless
they all have comfortable incomes, and merely because they
know their fellows and have practiced this knowledge with repeatedly
fresh applications.

I do not of course assert that we criminalists need little scholarly
knowledge of law, and ought to depend entirely upon knowledge of
men. We need exactly as much more knowledge as our task exceeds

that of the horse-dealer, but we can not do without knowledge of
humanity. The immense onerousness of the judge's office lies in
just the fact that he needs so very much more than his bare legal
knowledge. He must, before all things, be a jurist and not merely a
criminalist; he must be in full possession not only of the knowledge
he has acquired in his academy, but of the very latest up-to-date
status of his entire science. If he neglects the purely theoretical,
he degenerates into a mere laborer. He is in duty bound not only
to make himself familiar with hundreds of things, to be able to
consort with all sorts of crafts and trades, but also, finally, to form
so much out of the material supplied him by the law as is possible
to human power.

Section 4. (b) Integrity of Witnesses.


One of the criminal judge's grossest derelictions from duty consists
in his simply throwing the witness the question and in permitting
him to say what he chooses. If he contents himself in that,
he leaves to the witness's conscience the telling of the truth, and
the whole truth; the witness is, in such a case, certainly responsible
for one part of the untruthful and suppressed, but the responsibility
for the other, and larger part, lies with the judge who has failed to
do his best to bring out the uttermost value of the evidence,
indifferently for or against the prisoner. The work of education is
intended for this purpose,--not, as might be supposed, for training
the populace as a whole into good witnesses, but to make that
individual into a good, trustworthy witness who is called upon to
testify for the first, and, perhaps, for the last time in his life. This
training must in each case take two directions--it must make him
_*want_ to tell the truth; it must make him _*able_ to tell the truth. The
first requirement deals not only with the lie alone, it deals with
the development of complete conscientiousness. How to face the
lie itself can not be determined by means of training, but conscientious
answers under examination can certainly be so acquired.
We are not here considering people to whom truth is an utter stranger,
who are fundamentally liars and whose very existence is a libel
on mankind. We consider here only those people who have been
unaccustomed to speaking the full and unadulterated truth, who
have contented themselves throughout their lives with ``approximately,''
and have never had the opportunity of learning the value
of veracity. It may be said that a disturbingly large number of

people are given to wandering, in conversation, and in the reproduction
of the past. They do not go straight, quickly, and openly
to the point, they loiter toward it--``If I do not reach it in a bee
line, I can get along on by-paths, if not to-day, then to-morrow;
and if I really do not get to it at all, I do get somewhere else.'' Such
people have not homes but inns--if they are not in one place,
another will do.

These persons are characterized by the event that whenever
one has seen their loitering and puts the matter to them with just
anger, they either get frightened or say carelessly, ``Oh, I thought
this was not so accurate.'' This famine of conscience, this indifference
to truth, does far-reaching damage in our profession. I assert
that it does immensely greater harm than obvious falsehood, because,
indeed, the unvarnished lie is much more easily discoverable than
the probable truth which is still untruth. Moreover, lies come
generally from people with regard to whom one is, for one reason or
another, already cautious, while these insinuating approximations
are made by people who are not mistrusted at all.[1]

The lack of conscientiousness is common to all ages, both sexes,
and to all sorts and conditions of men. But it is most characteristically
frequent and sharply defined among people who have no
real business in life. Whoever romances in the daily life, romances
when he ought to be absolutely truthful. The most dangerous of
this class are those who make a living by means of show and exhibition.
They are not conscienceless because they do nothing
worth while; they do nothing worth while because they are conscienceless.
To this class belong peddlers, street merchants, innkeepers,
certain shop-keepers, hack-drivers, artists, etc., and especially
prostitutes (cf. Lombroso, etc., etc.). All these people follow
a calling perhaps much troubled, but they do no actual work and
have chosen their profession to avoid regular, actual work. They
have much unoccupied time, and when they are working, part of
the work consists of gossip, part of loafing about, or of a use of the
hands that is little more. In brief,--since they loiter about and
make a profit out of it, it is no wonder that in giving evidence they
also loaf and bring to light only approximate truth. Nor is it difficult
to indicate analogous persons in the higher walks of life.

The most hateful and most dangerous of these people are the
congenital tramps--people who did not have to work and faithfully
pursued the opportunity of doing nothing. Whoever does not

[1] Cf. Lwenstimm, in H. Gross's Archiv, VII, 191.

recognize that the world has no place for idlers and that life on God's
earth must be earned by labor, is without conscience. No conscientious
testimony need be expected from such. Among the few
rules without exception which in the course of long experience
the criminalist may make, this is one--that _the real tramps of both
sexes and all walks of life will never testify conscientiously;--hic
niger est, hunc Tu, Romane, caveto_.


Section 5. (c) The Correctness of Testimony.


The training of the witness into a _*capacity_ for truth-telling must
be based, (1) on the judge's knowledge of all the conditions that
affect, negatively, correct observations and reproductions; (2)
on his making clear to himself whether and which conditions are
operative in the case in question; and (3) on his aiming to eliminate
this negative influence from the witness. The last is in many cases
difficult, but not impossible. That mistakes have been made is
generally soon noted, but then, ``being called and being chosen''
are two things; and similarly, the discovery of _*what_ is correct and
the substitution of the essential observations for the opinionative
ones, is always the most difficult of the judge's tasks.

When the witness is both unwilling to tell the truth and unable
to do so, the business of training may be approached from a few
common view-points. Patience with the witness is perhaps the
most important key to success. No doubt it is difficult to be patient
where there is no time; and what with our contemporary overtasking,
there is no time. But that must be altered. Justice must
have strength to keep everybody's labor proportional to his task.
A nation whose representatives do not grant money enough for this
purpose must not expect satisfactory law courts--``no checkee no
washee;'' no money no justice. People who have time will acquire
patience.

Patience is necessary above all while taking evidence. A great
many witnesses are accustomed to say much and redundantly,
and again, most criminal justices are accustomed to try to shut
them off and to require brief statements. That is silly. If the
witness is wandering on purpose, as many a prisoner does for definite
reasons of his own, he will spread himself still more as he recognizes
that his examiner does not like it. To be disagreeable is his purpose.
He is never led by impatience beyond his introduction, and some
piece of evidence is lost because almost every accused who speaks

unintelligibly on purpose, says too much in the course of his speech
and brings things to light that no effort might otherwise have attained
to. Besides, whoever is making a purposely long-winded
testimony does not want to say anything superfluous, and if he
actually does so, is unaware of it. And even when he knows that
he is talking too much (most of the time he knows it from the impatient
looks of his auditors), he never can tell just what exceeded
the measure. If, then, he is asked to cut it short, he remains unmoved,
or at most begins again at the beginning, or, if he actually condescends,
he omits things of importance, perhaps even of the utmost
importance. Nor must it be forgotten that at least a large proportion
of such people who are brought to court have prepared their
story or probably blocked it out in the rough. If they are not permitted
to follow their plans, they get confused, and nothing coherent
or half-coherent is discovered. And generally those who say most
have thought their testimony over before. Those who merely have
to say no more than _*yes_ and _*no_ at the trial do not reduce the little
they are going to say to any great order; that is done only by such
as have a story to tell. Once the stream of talk breaks loose it is
best allowed to flow on, and only then interrupted with appropriate
questions when it threatens to become exhausting. Help against too
much talk can be found in one direction. But it must be made
use of before the evil begins, and is in any event of use only in the
description of a long chain of events,--e. g., a great brawl. There,
if one has been put in complete possession of the whole truth, through
one or more witnesses, the next witness may be told: ``Begin where
X entered the room.'' If that is not done, one may be compelled
to hear all the witness did the day before the brawl and how these
introductions, in themselves indifferent, have led to the event.
But if you set the subject, the witness simply abandons the first
part of possibly studied testimony without thereby losing his
coherence. The procedure may be accurately observed: The witness
is told, ``Begin at this or that point.'' This deliverance is
generally followed by a pause during which he obviously reviews
and sets aside the part of his prepared speech dealing with the events
preliminary to the required points. If, however, the setting of a
starting point does not work and the witness says he must begin
at the earlier stage, let him do so. Otherwise he tries so hard to
begin according to request that, unable to go his own way, he confuses
everything.

Copyright (c) 2007. fullstories.net. All rights reserved.