(d) Emotional Disposition, and Related Subjects. Madame de Krüdener writes in a letter to Bernardin de St. Pierre: "Je voulais être sentie." These laconic words of this wise pietist give us an insight into the significance of emotional life of woman. Man wants to be understood, woman to be felt. With this emotion she spoils much that man might do because of his sense of justice. Indeed, a number of qualities which the woman uses to make herself noted are bound up with her emotional life, more or less. Compassion, self-sacrifice, religion, superstition, all these depend on the highly developed, almost diseased formation of her emotional life. Feminine charity, feminine activity as a nurse, feminine petitions for the pardon of criminals, infinite other samples of women's kindly dispositions, must convince us that these activities are an integral part of their emotional life, and that women perform them only, perhaps, in a kind of dark perception of their own helplessness.

Spencer says that the feminine mind shows a definite lack with regard to the sense of justice. . . . These assertions show that women are deficient in justice, but do not show why. The deficiency is to be explained only in the superabundance of emotional life. This superabundance clarifies a number of facts of their daily routine. . . . The rich emotion restores a thousand times what may be missing in justice, and perhaps in many cases hits better upon what is absolutely right than the bare masculine sense of justice. We are, of course, frequently mistaken by relying on the testimony of women, but only when we assume that our rigorously judicial sentence is the only correct one, and when we do not know how women judge. Hence, we interpret women's testimonies with difficulty and rarely with correctness ; we forget that almost every feminine statement contains in itself much more judgment than the testimony of men; we fail to examine how much real judgment it contains; and finally, we weigh this judgment in other scales than those used by the woman. We do best, therefore, when we take the testimony of man and woman together in order to find the right average. This is not easy, for we are unable to enter properly into the emotional life of woman, and cannot therefore discount that tendency of hers to drag the objective truth in some biased direction. ... She fights with all her strength on the side that seems to her to be oppressed and innocently persecuted, irrespective of whether it is the side of the accused or of his enemy. In consequence, we must first of all, when judging her statements, determine the direction in which her emotion impels her, and this cannot be done with a mere knowledge of human nature. Nothing will do except a careful study of the specific feminine witness at the time she gives her evidence.

When we summarize all we know about woman, we may say briefly: Woman is neither better nor worse, neither more nor less valuable than man, but she is different from him. Inasmuch as nature has created every object correctly for its purpose, woman has also been so created. The reason of her existence is different from that of man's; hence, her nature is different.

180. ARTHUR C. TRAIN. The Prisoner at the Bar. (1908. 2d ed. p. 279.) Roughly speaking, women exhibit about the same idiosyncrasies and limitations in the witness chair as the opposite sex, and at first thought one

would be apt to say that it would be fruitless and absurd to attempt to predicate any general principles in regard to their testimony, but a careful study of female witnesses as a whole will result in the inevitable conclusion that their evidence has virtues and limitations peculiar to itself.・

Whatever difference does exist in character between the testimony of men and women has its root in the generally recognized diversity in the mental processes of the two sexes. Men, it is commonly declared, rely upon their powers of reason; women upon their intuition. Not that the former is frequently any more accurate than the latter. But our courts of law (at least those in English-speaking countries) are devised and organized, perhaps unfortunately, on the principle that testimony not apparently deduced by the syllogistic method from the observation of relevant fact is valueless, and hence woman at the very outset is placed at a disadvantage and her usefulness as a probative force sadly crippled.

The good old lady who takes the witness chair and swears that she knows the prisoner took her purse has perhaps quite as good a basis for her opinion and her testimony (even though she cannot give a single reason for her belief and becomes hopelessly confused on cross-examination) as the man who reaches the same conclusion ostensibly by virtue of having seen the defendant near by, observed his hand reaching for the purse, and then perceived him take to his heels. She has never been taught to reason and has really never found it necessary, having wandered through life by inference or, more frankly, by guesswork, until she is no longer able to point out the simplest stages of her most ordinary mental processes.

As the reader is already aware, the value of all honestly given testimony depends, first, upon the witness's original capacity to observe the facts; second, upon his ability to remember what he has seen and not to confuse knowledge with imagination, belief, or custom, and, lastly, upon his power to express what he has, in fact, seen and remembers.

Women do not differ from men in their original capacity to observe, which is a quality developed by the training and environment of the individual. It is in the second class of the witness's limitations that women as a whole are more likely to trip than men, for they are prone to swear to circumstances as facts, of their own knowledge, simply because they confuse what they have really observed with what they believe did occur or should have occurred, or with what they are convinced did happen simply because it was accustomed to happen in the past.

Perhaps the best illustration of the female habit of swearing that facts occurred because they usually occurred, was exhibited in the Twitchell murder trial in Philadelphia, cited in Wellman's "Art of Cross-examinaThe defendant had killed his wife with a blackjack, and having dragged her body into the back yard, carefully unbolted the gate leading to the adjacent alley and, retiring to the house, went to bed. His purpose was to create the impression that she had been murdered by some one from outside the premises. To carry out the suggestion, he bent a poker and left it lying near the body smeared with blood. In the morning the servant girl found her mistress and ran shrieking into the street.

At the trial she swore positively that she was first obliged to unbolt the door in order to get out. Nothing could shake her testimony, and she thus unconsciously negatived the entire value of the defendant's adroit precau

tions. He was justly convicted, although upon absolutely erroneous testimony...

Though the conclusions to which women frequently jump may usually be shown by careful interrogation to be founded upon observation of actual fact, their habit of stating inferences often leads them to claim knowledge of the impossible "wiser in [their] own conceit than seven men that can

render a reason."

In a very recent case where a clever thief had been convicted of looting various apartments in New York City of over eighty thousand dollars' worth of jewelry, the female owners were summoned to identify their property. The writer believes that in every instance these ladies were absolutely ingenuous and intended to tell the absolute truth. Each and every one positively identified various of the loose stones found in the possession of the prisoner as her own. This was the case even when the diamonds, emeralds, and pearls had no distinguishing marks at all. It was a human impossibility actually to identify any such objects, and yet these eminently respectable and intelligent gentlewomen swore positively that they could recognize their jewels. They drew the inference merely that as the prisoner had stolen similar jewels from them these must be the actual ones which they had lost, an inference very likely correct, but valueless in a tribunal of justice.

Where their inferences are questioned, women, as a rule, are much more ready to swear their testimony through" than men. They are so accustomed to act upon inference that, finding themselves unable to substantiate their assertion by any sufficient reason, they become irritated, "show fight," and seek refuge in prevarication. Had they not, during their entire lives, been accustomed to mental short cuts, they would be spared the humiliation of seeing their evidence “stricken from the record."

One of the ladies referred to testified as follows:

"Can you identify that diamond?"

"I am quite sure that it is mine."

"How do you know?"

"It looks exactly like it."

"But may it not be a similar one and not your own?" "No; it is mine."

"But how? It has no marks."

"I don't care.

I know it is mine. I SWEAR IT IS!"

The good lady supposed that, unless she swore to the fact, she might lose her jewel, which was, of course, not the case at all, as the sworn testimony founded upon nothing but inference left her in no better position than she was in before.

The writer regrets to say that observation would lead him to believe that women as a rule have somewhat less regard for the spirit of their oaths than men, and that they are more ready, if it be necessary, to commit perjury. This may arise from the fact that women are fully aware that their sex protects them from the same severity of cross-examination to which men would be subjected under similar circumstances. It is to-day fatal to a lawyer's case if he be not invariably gentle and courteous with a female witness, and this is true even if she be a veritable Sapphira.

In spite of these limitations, which, of course, affect the testimony of

almost every person, irrespective of sex, women, with the possible exception of children, make the most remarkable witnesses to be found in the courts. They are almost invariably quick and positive in their answers, keenly alive to the dramatic possibilities of the situation, and with an unerring instinct for a trap or compromising admission.

A woman will inevitably couple with a categorical answer to a question, if in truth she can be induced to give one at all, a statement of damaging character to her opponent. For example:

"Twenty-three,

old enough to have known better than to trust him." Forced to make an admission which would seem to hurt her position, the explanation, instead of being left for the redirect examination of her own counsel, is instantly added to her answer then and there.

"Do you admit that you were on Forty-second Street at midnight?" "Yes. But it was in response to a message sent by the defendant through his cousin."

What is commonly known as "silent cross-examination" is generally the most effective. The jury realize the difficulties of the situation for the lawyer, and are not unlikely to sympathize with him, unless he makes bold to attack the witness, when they quickly change their attitude.

One question, and that as to the witness's means of livelihood, is often sufficient.

"How do you support yourself?"

"I am a lady of leisure!" replies the witness (arrayed in flamboyant colors) snappishly.

"That will do, thank you," remarks the lawyer with a smile. "You' may step down.”

The writer remembers being nicely hoisted by his own petard on a similar occasion:

"What do you do for a living?" he asked.

The witness, a rather deceptively arrayed woman, turned upon him with a glance of contempt:

"I am a respectable married woman, with seven children," she retorted. “I do nothing for a living except cook, wash, scrub, make beds, clean windows, mend my children's clothes, mind the baby, teach the four oldest their lessons, take care of my husband, and try to get enough sleep to be up by five in the morning. I guess if some lawyers worked as hard as I do, they would have sense enough not to ask impertinent questions."

There is no witness in the world more difficult to cope with than a shrewd old woman who apes stupidity, only to reiterate the gist of her testimony in such incisive fashion as to leave it indelibly imprinted on the minds of the jury. The lawyer is bound by every law of decency, policy, and manners to treat the aged dame with the utmost consideration. He must allow her to ramble on discursively in defiance of every rule of law and evidence in answer to the simplest question; must receive imperturbably the opinions and speculations upon every subject of both herself and (through her) of her neighbors; only to find when he thinks she must be exhausted by her

own volubility, that she is ready, at the slightest opportunity, to break away again into a tangle of guesswork and hearsay, interwoven with conclusions and ejaculation. Woe be unto him if he has not sense enough to waive her off the stand! He might as well try to harness a Valkyrie as to restrain a pugnacious old Irishwoman who is intent on getting the whole business before the jury in her own way.

In the recent case of Gustav Dinser, convicted of murder, a vigorous old lady took the stand and testified forcibly against the accused. She was as "smart as paint," as the saying goes, and resolutely refused to answer any questions put to her by counsel for the defense. Instead, she would raise her voice and make a savage onslaught upon the prisoner, rehearsing his brutal treatment of the deceased on previous occasions, and getting in the most damaging testimony.

"Do you say, Mrs.

," the lawyer would inquire deferentially, "that you heard the sound of three blows?"

"Oh, thim blows!" the old lady would cry "thim turrible blows! I could hear the villain as he laid thim on! I could hear the poor, pitiful groans av her, and she so sufferin'! 'Twas awful! Howly Saints, 'twould make yer blood run cowld!"

"Stop! stop!" exclaimed the lawyer.

"Ah, stop is it? Ye can't stop me till Oi've had me say to tell the whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste is afther murtherin' the poor thing,' says I; 'run out an' git an officer!""

"I object to all this!" shouts the lawyer. "Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been after objectin' if ye'd heard thim turrible blows that kilt her the poor, sufferin', swate crayter! I hope he gits all that's comin' to him cess to him for a bloody-thirsty divil!"

The lawyer ignominiously abandoned the attack.

bad

To recapitulate, the quickness and positiveness of women make them ordinarily better witnesses than men; they are vastly more difficult to cross-examine; their sex protects them from many of the most effective weapons of the lawyer, with the result that they are the more ready to yield to prevarication; and, even where the possibility of complete and unrestricted cross-examination is afforded, their tendency to inaccurately inferential reasoning, and their elusiveness in dodging from one conclusion to another, render the opportunity of little value.

In general, however, women's testimony differs little in quality from that of men, all testimony being subject to the same three great limitations irrespective of the sex of the witness, and the conclusions set forth above are merely the result of an effort on the part of the writer to comment somewhat upon those small differences which, under close scrutiny, may fairly be said to exist. These differences are quite as noticeable at the breakfast table as in the court room; and are no more patent to the advocate than to the ordinary male animal whose forehead habitually reddens when he hears the unanswerable reason which, in default of all others, explains and glorifies the mental action of his wife, sister, or mother : "Just because !"