181. CHARLES C. MOORE. A Treatise on Facts, or the Weight and Value of Evidence. (1908. Vol. II, §§ 914-920). . . . Observation of Women. We have seen that attention is essential to accuracy of observation. Experimental researches upon voluntary attention show, says Ribot, that attention generally requires more time in women than in men. But he remarks

in another place, that "the janitor's wife will spontaneously lend her whole attention to the gossip of her neighbors," and that "a woman will take in, in the twinkling of an eye, the complete toilet of a rival," thus giving them credit for celerity of attention commensurate with intensity of interest, which is about as much as can be conceded to anybody. Dr. Gross, an authority of very high rank, says "a woman is more patient, more attentive, more cunning, and more reflecting than a man." Professor James says "women in general train their peripheral visual attention more than men," that is to say, their attention to objects lying in the marginal portions of the field of vision. . .

...

Memory of Women. There is little or no ground for contending that a woman is sui generis in respect of her faculty of memory. Some things naturally engage a woman's special attention and interest which would be regarded with comparative indifference by a man. But very many men are

likewise inattentive to things which have a strong attraction for other men. Professor Thorndike declares that "many a woman of generally feeble memory can remember every dress she has owned since she was ten years old." Methodical inquiries by Professor Colegrove have led him to conclude that in the general average for the whole life women have a slightly higher percentage of visual, auditory, gustatory, and tactile memories than

men.

Veracity of Women. Schopenhauer declared that women, being the weaker sex and dependent therefore upon craft and not upon strength, have an instinctive capacity for cunning and an ineradicable tendency to say what is not true; and that it is as natural for them to make use of dissimulation on every 'occasion as it is for beasts to employ their means of defense when they are attacked. But it was remarked by Chancellor Zabriskie of New Jersey as not unnatural that weak and ignorant men should resort to falsehood as a protection against adversaries of superior knowledge and sagacity. Schopenhauer also said that a perjury in a court of justice is more often committed by women than by men, and that it may, indeed, be generally questioned whether women ought to be sworn at all. Like the unenlightened observers of the epileptic and the insane in former days, he ascribed women's actual shortcomings, physical and intellectual, to fundamental and innate characteristics. . . . Spencer, who found his data in England, advances reasons for believing that the physical and mental . infirmities of women are the outcome of environment and heredity, not of fundamental differences based on sex. Darwin expressed the same opinion, which he placed upon a strictly scientific basis. Mascardus said: "Feminis plerumque omnino non creditur, et id dumtaxat, quod sunt feminæ, quæ ut plurimum solent esse fraudulentæ, fallaces, et dolosa."

Believe a woman or an epitaph;

Or any other thing that's false.

BYRON, "English Bards and Scotch Reviewers."

Have Women Peculiar Traits that affect Their Testimony? They have, if we are to believe the striking utterances of Mr. Justice Wayne, of the United States Supreme Court, who said: "The distinguished Sherlock says, without any satirical intention or meaning to say that women are inferior to men, 'Whilst she trusts her instinct she is scarcely ever deceived, and she is generally lost when she begins to reason.' And I need not tell my brethren, as evidence rests upon our faith in human testimony as sanctioned by experience, that the conclusion of the great divine is that of the law, and that the testimony of women is weighed with caution and allowances for them differently from that of men." Mr. Train says: "Women in the witness chair. . . 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."

If the foregoing observations in pais, so to speak, of Sherlock, Mr. Justice Wayne, and Mr. Train are sound, we ought to find some confirmation of them among the immense number of reported opinions of judges of courts of first instance in the last hundred years. The author of this work has read all of the reported opinions of Sir John Nicholl, Dr. Lushington, Sir William Scott (Lord Stowell), and others who sat as the sole triers of facts in the old English ecclesiastical courts; every opinion in all of the New Jersey Equity and Law reports, the former especially enriched by the utterances of Chancellors Zabriskie, Williamson, Magie, and McGill, and of Vice Chancellors Van Fleet and Pitney, on the weight of testimony in cases decided by them in the exercise of the one-man power"; nearly all the opinions ever delivered by a federal judge, particularly in chancery cases; and tens of thousands of other opinions by United States, Canadian, and English judges. With his attention alert to notice any judicial expression derogatory to the testimony of any class of witnesses, the author certifies that he has not seen a single allusion to constitutional limitations of women as trustworthy witnesses, and most of the judges above named were much in the habit of philosophizing on the characteristics of witnesses of various sorts and conditions - children, youths, aged persons, negroes, orientals, sailors, etc. The "distinguished Sherlock," whose specious statement was indorsed by Justice Wayne and whose laudation of the female instinct is flatly contradicted by judicial experience in at least one important particular lived in a period when male witnesses' "inferences," devoured by male juries and judges, were sending witches to a dreadful doom. Judges nowadays, as well as the professional psychologists, are fully aware that all human beings are prone to do exactly what Mr. Train, as above quoted, attributes especially to women, namely, to substitute.inference for recollection. This vice and kindred aberrations are not peculiar to women, according to a great number of reported cases.

182. G. M. WHIPPLE. Manual of Mental and Physical Tests. [Printed post, as No. 290.)

183. GEORGE CANT'S CASE. [Printed post, as No. 364.]

184. THE PERREAUS' CASE. [Printed post, as No. 361.] 185. THOMAS HOAG'S CASE. [Printed post, as No. 363.] 186. MRS. MORRIS' CASE. [Printed post, as No. 287.]

187. CHICAGO & ALTON R. CO. v. GIBBONS. [Printed post, as No. 365.]

188. LAURENCE BRADDON'S TRIAL. [Printed post, as No. 391.] 189. HILLMON v. INSURANCE CO. [Printed post, as No. 389.] 190. THROCKMORTON v. HOLT. [Printed post, as No. 390.]

SUB-TITLE D: MENTAL DISEASE

191. G. F. ARNOLD. Psychology applied to Legal Evidence. (1906. pp. 283, 296, 318.) . . . The importance of insanity in law is manifold: it raises the question whether a criminal is to be held responsible or not for some lawless act, whether a witness is competent to give evidence, whether a party is qualified to contract, whether a partnership or agency is terminated, and other similar points. . . . At the outset some general features of insanity will be noted. The effect of mental disease is in general to substitute for the complex balanced system of psychical forces which we have in health, a comparatively simple state of things in which certain tendencies grow abnormally strong and predominant through the suppression of others. More particularly, the higher and later acquired forms of psychosis, regulative processes of ideation, and self-control generally, tend to be dissolved, leaving the earlier and more instinctive tendencies uncontrolled. Thus through the weakening of the regulative volitional factor the patient is unable to control his ideas, and his intelligence is wrecked: or he becomes a prey to unregulated emotion, as where overweening conceit, timidity, or animosity becomes predominant, and helps to maintain corresponding mental illusions. We draw attention to the fact, for reasons that will appear later, that stress is here laid on the weakening of the volitional factor, and this feature again appears as the explanation of the crowd of associations of ideas which run riot in the insane mind. "If there is any single criterion of mental derangement," says Wundt, "it is this that logical thought and the voluntary activity of the constructive imagination give way to the incoherent play of multifarious associations." He attributes the purposeless vacillation of the insane and the manner in which they express their thoughts to a lack of voluntary control over the unruly associations, and says that it is in this very mobility of association that the germ of decay is to be looked for. . .

Let us now briefly gather up the results of this discussion. There are no such things as cognitive faculties existing apart from the emotions and the will, nor can our cognitive processes be separated off from our emo

tional and volitional ones, except for the purposes of study and exposition. These mental states are interconnected and occur together in one total state of consciousness, and states of consciousness are bound together by the existence of the organism. All ultimately depend on that, but the emotional states do so more directly than the intellectual ones, and it is our emotions which have the preponderating influence in the whole psychical complex which represents the mind at any time. They guide the intellect and direct it, and the latter cannot make decisions in opposition to them on purely intellectual grounds. It follows from this that the emotions and the will cannot be affected without also affecting our cognition, and delusions, illusions, etc., and what are generally known as derangements of the intellect can be traced to, and, in fact, explained as, the products of perversion of the emotions and affection of the organic sensations. . . . As, for the reasons already given, the close interconnection of the cognitive, emotional, and volitional processes is established, if the affection of any one of them is proved it ought to be presumed that the others are also affected until those who assert in the contrary prove their view to be cor

To the popular mind, fixed ideas and delusions are very frequently signs of madness, but neither are necessarily so. Delusions are false opinions about a matter of fact and sometimes do and sometimes do not involve false perceptions of sensible things. In the case of the insane they are apt to affect certain typical forms hard to explain: in many instances they are theories which the patients invent to account for their abnormal bodily sensations; in other cases they are due to hallucinations of hearing and sight.... Fixed ideas always coincide with an advanced stage of mental disease though they often are not a form of insanity in the legal sense. They may be merely a diseased excrescence which does not suppose a total transformation of the individual. There are practically three classes of them, viz.: (1) simple fixed ideas of a purely intellectual nature; (2) fixed ideas accompanied by emotions, such as terror and agony, the insanity of doubt; and (3) fixed ideas of an impulsive form. These last manifest themselves in violent or criminal acts, such as suicide and homicide and are the only kind that should be held to indicate irresponsibility in law. They are, in fact, in such cases the irresistible tendencies already alluded to.1 Speaking of fixed ideas in general, Ribot says that they are a symptom of degeneration and the persons who have them are not therefore insane. . He also shows how the mechanism of the fixed idea resembles that of ordinary attention: there is no difference of kind, but only of degree. The fixed idea has a greater intensity and a longer duration, but if a state of spontaneous attention were similarly strengthened and rendered permanent, the whole array of irrational conceptions that form the retinue and present a fictitious appearance of insanity would of necessity be added to it as the mere result of the logical mechanism of the mind. At the same time the fixed idea presupposes a considerable weakening of the will, that is, of the power to react. When a man possessed by a fixed idea is merely a witness who has to give evidence, his evidence will be accepted on other points than that to which the fixed idea relates. At least this is the case of the monomaniac, concerning whom it has been

1 Ribot on Attention, pp. 78-79.

so laid down, and who is termed in the law decisions "partially insane." This agrees with the view of Ribot already quoted that a fixed idea is often only a diseased excrescence which does not suppose a total transformation of the individual. . . .

There remain for consideration lucid intervals in insanity, and idiocy. "The idiot," it is said [by a law writer], "can never become rational; but a lunatic may entirely recover or have lucid intervals; . . . thus a lunatic during a lucid interval may be examined." . . . [This statement is correct enough as to the lunatic.] There is no permanently existing diseased self which appears and disappears at intervals, and thus may infect the intervening period during which the subject is apparently sound; but the preponderating state of consciousness at each moment constitutes to the individual and to others his personality. . . . But that the idiot can never become rational is perhaps too sweeping a statement: it ignores the fact that there are degrees of the state. "Idiocy has various degrees from complete nullity of intelligence to simple weak-mindedness, according to the point at which arrest of development has taken place." At the same time it is true that when the idiot is one whose brain does not contain the whole cerebral mass you cannot create it (though in the case of the young where it has been due to some malformation which has prevented the brain from developing, removal of the cause will lead to improvement). To educate imbeciles and idiots is extremely difficult, because they are bereft of the faculty of attention; the system is to make use of those senses which fulfill their function in order to develop those which do not, and after a long course of training "it becomes possible to raise the idiot more or less near to the level of ordinary perceptual consciousness." It has sometimes been remarked that persons of this type are particularly trustworthy as messengers and in carrying out instructions, if you can once get into their heads what it is they are required to do: this is due to their narrow range of interests and the resulting absence of distracting considerations. For the same reason they sometimes show unusual powers of memory; they recall remarkable series of objects contiguous in time and space because there are no other divergent lines of association to compete with those which are formed by the mere sequence of external impressions. To systematically distrust the idiot as a witness would therefore be an error: within the limits of his observation he may be expected to be particularly correct in his account of occurrences.

There is said to be a presumption in law that insanity which has been once established will continue, and that the burden of proof of a subsequent lucid interval lies on the party who asserts it. This is based on another general presumption that things generally remain the same, including persons, personal relations, states of things, individual's opinions and states of mind. It is not supposed that such a presumption really weighs very much, but we cannot refrain from remarking that the value of it is simply nil it is mere prejudice, and, as Mr. Bradley says, "the general disposition to believe that what has been is, or that what is usually is always, cannot seriously be offered as a conclusive argument." . . . The fact appears to be that no general presumption can be drawn concerning the continuance or non-continuance of insanity: it is possible to draw presumptions from the symptoms of certain kinds, because these indicate that the madness is