libelant's suggestion that they were green hands at the business, he tapped him on the head with the monkey-wrench, or some like instrument, severely enough to make an ugly wound, which turned out to be not very serious, and that the libelant, in his haste to get away and escape further blows, or to get about his work, fell between the vessel and the barge from which the machinery was being transferred and into the river, from which danger the mate promptly rescued him, and saved his life. or Turning now to the defendant's proof, I find nothing in it necessarily overcoming the circumstances tending to establish the above conclusion of fact. Of course, there is the denial of the mate; but that has already been treated, and the other proof must prevail against it. Nothing in the proof of the other witnesses establishes his denial necessarily tends to support it. Every one of them testifies, to be sure, that he did not see the blow, and some of them think they would have seen it if there had been one struck; but it is manifest from the nature of the act and the situation of each, as described by himself, that the blow could have been struck and not one of them have seen it. It is a kind of negative testimony of not much value. . . . The libelant says that the other mate, the witness Bradford, stood by and saw the blow, and no doubt he was close enough to have seen it; but that witness was himself engaged in the business of hurrying up the work by superintending it, and, notwithstanding his proximity, may not have seen the blow. He is very positive none was struck; but he did not belong to the "gang" of workmen and was not, like them, at that moment subjected to the immediate supervision of the mate and brought into direct contact with him. . Now, there can be no question whatever that if we rigidly confine the libelant to the minutiae of his story and that of the witnesses, and demand that every detail of it shall be precisely consistent with the ascertained fact before any corroboration shall be established by those facts, it would fail. So would the story of the mate and his witnesses fail under such a process. But it is an unreasonable requirement, and the law of evidence does not demand such consistency of detail in the relation of occurrences of that nature. The truth is that no two witnesses on such occasions quite agree as to the details of an occurrence, and no single witness can tell with absolute precision what took place and describe accurately all the details. The most that any trier of the issue can do is to extract from the consistencies and the inconsistencies of statements the truth as nearly as it may be. That the blow was struck in this case will always remain, argumentatively, perhaps, a matter of doubt; but for the practical purposes of judicial judgment it must be taken as an established fact. Perhaps I should refer to the attack on the libelant for his false statement that he remained at home six weeks, when the proof shows that in less than ten days he worked a week in Memphis. If this be material, it may be said that it is doubtful if negroes of this class can ever be accurate as to time and its relation to events. It is notorious that the most intelligent witnesses find difficulty in estimating time, and generally say, "four or five weeks," and "five or six days," etc., in measuring it; but negroes seem to be most unreliable in this respect, almost always. The libelant doubtless thought to exaggerate his sufferings by making the time longer, but it is hardly fair, under the circumstances already stated, to disbelieve him on that account as to the blow. Moreover, he may well reply "tu quoque"; for this mate swore positively that he paid the libelant that night before he left the boat, while the truth is that he escaped from the boat with the other negroes, and went to the magistrate's office, and returned next day for his pay, slipping on board to avoid the mate, whom he was evidently afraid to meet. It is not quite satisfactory to argue that the one statement is material and the other immaterial to the issue. The mate's statement, if true, would have been quite as strong as a corroborating circum stance of his story as the libelant's would have been a material aggravation of his damages. So much attention to a dispute about a mere matter of fact is necessary, under the circumstances, to avoid any misunderstanding or misrepresentation as to the grounds of this judgment. ... The libelant will be allowed $100 damages, and his costs of suit. So ordered. SUB-TITLE B: AGE 172. ROBERT LOUIS STEVENSON. Virginibus Puerisque. Essay on Child's Play. The regret we have for our childhood is not wholly justifiable so much a man may lay down without fear of public ribaldry; for although we shake our heads over the change, we are not unconscious of the manifold advantages of our new state. What we lose in generous impulse, we more than gain in the habit of generously watching others; and the capacity to enjoy Shakespeare may balance a lost aptitude for playing at soldiers. Terror is gone out of our lives, moreover; we no longer see the devil in the bed-curtains nor lie awake to listen to the wind. We go to school no more; and if we have only exchanged one drudgery for another (which is by no means sure), we are set free forever from the daily fear of chastisement. And yet a great change has overtaken us; and although we do not enjoy ourselves less, at least we take our pleasure differently. We need pickles nowadays to make Wednesday's cold mutton please our Friday's appetite; and I can remember the time when to call it red venison, and tell myself a hunter's story, would have made it more palatable than the best of sauces. To the grown person, cold mutton is cold mutton all the world over; not all the mythology ever invented by man will make it better or worse to him; the broad fact, the clamant reality, of the mutton carries away before it such seductive figments. But for the child it is still possible to weave an enchantment over eatables; and if he has but read of a dish in a story book, it will be heavenly manna to him for a week. . . . Children may be pure spirits, if they will, and take their enjoyment in a world of moonshine. Sensation does not count for so much in our first years as afterwards; something of the swaddling numbness of infancy clings about us; we see and touch and hear through a sort of golden mist. Children, for instance, are able enough to see, but they have no great faculty for looking; they do not use their eyes for the pleasure of using them, but for by-ends of their own; and the things I call to mind seeing most vividly were not beautiful in themselves, but merely interesting or enviable to me as I thought they might be turned to practical account in play. Nor is the sense of touch so clean and poignant in children as it is in a man. If you will turn over your old memories, I think the sensations of this sort you remember will be somewhat vague, and come to not much more than a blunt, general sense of heat on summer days, or a blunt, general sense of well-being in bed. . . . As for taste, when we bear in mind the excesses of unmitigated sugar which delight a youthful palate, it is surely no very cynical asperity to think taste a character of the maturer growth. Smell and hearing are perhaps more developed; I remember many scents, many voices, and a great deal of spring singing in the woods. But hearing is capable of vast improvement as a means of pleasure; and there is all the world between gaping wonderment at the jargon of birds, and the emotion with which a man listens to articulate music. At the same time, and step by step, with this increase in the definition and intensity of what we feel which accompanies our growing age, another change takes place in the sphere of intellect, by which all things are transformed and seen through theories and associations as through colored windows. We make to ourselves day by day, out of history, and gossip, and economical speculations, and God knows what, a medium in which we walk and through which we look abroad. We study shop windows with other eyes than in our childhood, never to wonder, not always to admire, but to make and modify our little incongruous theories about life. . . . According to my contention, this is a flight to which children cannot rise. . . . We grown people can tell ourselves a story, give and take strokes until the bucklers ring, ride far and fast, marry, fall, and die; all the while sitting quietly by the fire or lying prone in bed. This is exactly what a child cannot do, or does not do, at least, when he can find anything else. He works all with lay figures and stage properties. When his story comes to the fighting, he must rise, get something by way of a sword and have a set-to with a piece of furniture, until he is out of breath. When he comes to ride with the king's pardon, he must bestride a chair, which he will so hurry and belabor and on which he will furiously demean himself, that the messenger will arrive, if not bloody with spurring, at least fiery red with haste. If his romance involves an accident upon a cliff, he must clamor in person about the chest of drawers and fall bodily upon the carpet, before his imagination is satisfied. Lead soldiers, dolls, all toys, in short, are in the same category and answer the same end. Nothing can stagger a child's faith; he accepts the clumsiest substitutes and can swallow the most staring incongruities. The chair he has just been besieging as a castle, or valiantly cutting to the ground as a dragon, is taken away for the accommodation of a morning visitor, and he is nothing abashed; he can skirmish by the hour with a stationary coal scuttle; in the midst of the enchanted pleasance, he can see, without sensible shock, the gardener soberly digging potatoes for the day's dinner. He can make abstraction of whatever does not fit into his fable; and he puts his eyes into his pocket, just as we hold our noses in an unsavory lane. In the child's world of dim sensation, play is all in all. "Making believe" is the gist of his whole life, and he cannot so much as take a walk except in character. I could not learn my alphabet without some suitable "mise-enscène," and had to act a business man in an office before I could sit down to my book. Will you kindly question your memory, and find out how much you did, work or pleasure, in good faith and soberness, and for how much you had to cheat yourself with some invention? I remember, as though it were yesterday, the expansion of spirit, the dignity and self-reliance, that came with a pair of mustachios in burnt cork, even when there was none to see. Children are even too content to forego what we call the realities, and prefer the shadow to the substance. When they might be speaking intelligibly together, they chatter senseless gibberish by the hour, and are quite happy because they are making believe to speak French. I have said already how even the imperious appetite of hunger suffers itself to be gulled and led by the nose with the fag end of an old song. When my cousin and I took our porridge of a morning, we had a device to enliven the course of the meal. He ate his with sugar, and explained it to be a country continually buried under snow. I took mine with milk, and explained it to be a country suffering gradual inundation. You can imagine us exchanging bulletins; how here was an island still unsubmerged, here a valley not yet covered with snow; what inventions were made; how his population lived in chains on perches and traveled on stilts, and how mine was always in boats; how the interest grew furious, as the last corner of safe ground was cut off on all sides and grew smaller every moment; and how, in fine, the food was of altogether secondary importance, and might even have been nauseous, so long as we seasoned it with these dreams. One thing, at least, comes very clearly out of these considerations: that whatever we are to expect at the hands of children, it should not be any peddling exactitude about matters of fact. They walk in a vain show, and among mists and rainbows; they are passionate after dreams and unconcerned about realities; speech is a difficult art not wholly learned; and there is nothing in their own tastes or purposes to teach them what we mean by abstract truthfulness. When a bad writer is inexact, even if he can look back on half a century of years, we charge him with incompetence and not with dishonesty. And why not extend the same allowance to imperfect speakers? Let a stockbroker be dead stupid about poetry, or a poet inexact in the details of business, and we excuse them heartily from blame. But show us a miserable, unbreeched, human entity, whose whole profession it is to take a tub for a fortified town, and a shaving brush for the deadly stiletto, and who passes three fourths of his time in a dream and the rest in open self-deception, and we expect him to be as nice upon a matter of fact as a scientific expert bearing evidence. Upon my heart, I think it less than decent.. You do not consider how little the child sees, or how swift he is to weave what he has seen into bewildering fiction; and that he cares no more for what you call truth, than you for a gingerbread dragoon. I am reminded, as I write, that the child is very inquiring as to the precise truth of stories. But indeed this is a very different matter, and one bound up with the subject of play, and the precise amount of playfulness, or playability, to be looked for in the world. Many such burning questions must arise in the course of nursery education. Among the fauna of this planet, which already embraces the pretty soldier and the terrifying Irish beggarman, is, or is not, the child to expect a Bluebeard or a Cormoran ? Is he, or is he not, to look out for magicians, kindly and potent? May he, or may he not, reasonably hope to be cast away upon a desert island, or turned to such diminutive proportions that he can live on equal terms with his lead soldiery, and go a cruise in his own toy schooner? Surely all these are practical questions to a neophyte entering upon life with a view to play. Precision upon such a point, the child can understand. But if you merely ask him of his past behavior, as to who threw such a stone, for instance, or struck such and such a match; or whether he had looked into a parcel or gone by a forbidden path, — why, he can see no moment in the inquiry, and it is ten to one he has already half forgotten and half bemused himself with subsequent imaginings. 173. HANS GROSS. Criminal Psychology (transl. Kallen, 1911. §§ 7982, pp. 368-374, in part); and Criminal Investigation (transl. Adam, 1907. p. 91.) . . . Of course we cannot fix absolutely the age at which witnesses are more or less worthy of credit; we must in addition and even to a greater extent take into account all the other elements which go to make up a man, his natural qualities and intellectual culture. But still certain broad rules may be laid down as to age. The conditions of the child's bringing-up, the things he learned to know, are what we must first of all learn. If the question in hand can fit into the notion the child possesses, he will answer better and more, though quite unendowed, than if a very clever child who is foreign to the notions of the defined situation. I should take intelligence only to be of next importance in such cases, and advise giving up separating clever from stupid children in favor of separating practical and unpractical children. The latter makes an essential difference. Both the children of talent and stupid children may be practical or unpractical. . . . The practical child will see, observe, properly understand, and reproduce a group of things that the unpractical child has not even observed. Of course, it is well, also, to have the child talented, but I repeat: the least clever practical child is worth more as witness than the most clever unpractical child. What the term "practical" stands for is difficult to say, but everybody knows it, and everybody who has cared about children at all, has seen that there are practical children. In one sense the best witnesses are children of 7 to 10 years of age. Love and hatred, ambition and hypocrisy, considerations of religion and rank, of social position and fortune, are as yet unknown to them; it is impossible that preconceived opinions, nervous irritation, or long experience, should lead them to form erroneous impressions; the mind of the child is but a mirror that reflects accurately and clearly what is found before it. These are great advantages, accompanied by certain corresponding drawbacks. The greatest is that we cannot place ourselves at the point of view of the child; it uses indeed the same words as we do, but these words convey to it very different ideas. Further, the child perceives things differently from grown-up people. The conception of magnitude — great or small, of pace fast or slow, of beauty and ugliness, of distance near or far, are quite different in the child's brain from in ours; still more so when facts are in question. Facts to us perfectly indifferent delight or terrify the child, and what for us is magnificent or touching does not affect it in the least. We are ignorant of the impression produced on the child's mind. There is yet another difficulty; the horizon of the child being much narrower than ours, a large number of our perceptions are outside the frame within which alone the child can perceive. We know, within certain limits, the extent of this frame; we should not, for instance, question a child as to how a complicated piece of roguery was committed, or how adulterous relations have developed; we know it is ignorant of such things. But in many directions we do not know the exact point where its faculty of observation commences |