same time. This fact is called "the personal equation." Whether the difference in rate of sense perception, or the difference of intellectual apprehension, or of both together, are here responsible, is not known, but the proved distinction (even to a second) is so much the more important, since events which succeed each other very rapidly may cause individual observers to have quite different images. And we know as little whether the slower or the quicker observer sees more correctly, as we little know what people perceive more quickly or more slowly. Now, inasmuch as we are unable to test individual differences with special instruments, we must satisfy ourselves with the fact that there are different varieties of conception, and that these may be of especial importance in doubtful cases, such as brawls, sudden attacks, cheating at cards, pocketpicking, etc.

The next degree of difference is in the difference of observation. Schiel says that the observer is not he who sees the thing, but who sees of what parts it is made. The talent for such vision is rare. One man overlooks half because he is inattentive or is looking at the wrong place; another substitutes his own inferences for objects, while another tends to observe the quality of objects, and neglects their quantity; and still another divides what is to be united, and unites what is to be separated. If we keep in mind what profound differences may result in this way, we must recognize the source of the conflicting assertions by witnesses. And we shall have to grant that these differences would become incomparably greater and more important if the witnesses were not required to talk of the event immediately, or later on, thus approximating their different conceptions to some average. Hence we often discover that when the witnesses really have had no chance to discuss the matter and have heard no account of it from a third person, or have not seen the consequences of the deed, their discussions of it showed distinct and essential differences merely through the lack of an opportunity or a standard of correction. And we then suppose that a part of what the witnesses have said is untrue, or assume that they were inattentive or blind.

Personal views are of similar importance. Fiesto exclaims: "It is scandalous to empty a full purse, it is impertinent to misappropriate a million, but it is unnamably great to steal a crown. The shame decreases with the increase of the sin." Exner holds that the ancients conceived Edipus not as we do; they found his misfortune horrible; we find it unpleasant.

These are poetical criminal cases presented to us from different points of view; and we nowadays understand the same action still more differently, and not only in poetry, but in the daily life. Try, for example, to get various individuals to judge the same formation of clouds. You may hear the clouds called flower stalks with spiritual blossoms, impoverished students, stormy sea, camel, monkey, battling giants, swarm of flies, prophet with a flowing beard, dunderhead, etc. We have coming to light, in this accidental interpretation of fact, the speaker's view of life, his intimacies, etc. This emergence is as observable in the interpretation also of the ordinary events of the daily life. There, even if the judgments do not vary very much, they are still different enough to indicate quite distinct points of view. The memory of the curious judgment of one cloud formation has

helped me many a time to explain testimonies that seemed to have no possible connection.

Attitude or feeling. This indefinable factor exercises a great influence on conception and interpretation. It is much more wonderful than even the march of events, or of fate itself. Everybody knows what attitude (Stimmung) is. Everybody has suffered from it, everybody has made some use of it, but nobody can altogether define it. According to Fischer, attitude consists in the compounded feelings of all the inner conditions and changes of the organism, expressed in consciousness. This would make attitude a sort of vital feeling, the resultant of the now favorable, now unfavorable, functioning of our organs...

The attitude we call indifference is of particular import. It appears, especially, when the ego, because of powerful impressions, is concerned with itself; pain, sadness, important work, reflection, disease, etc. In this condition we depreciate or undervalue the significance of everything that occurs about us. Everything is brought into relation to our personal, immediate condition, and is, from the point of view of our egoism, more or less indifferent. It does not matter whether this attitude of indifference occurs at the time of perception or at the time of restatement during the examination. In either case, the fact is robbed of its hardness, its significance, and its importance; what was white or black, is described as gray.

Strong Feeling as a Cause of Inaccuracy of Observation. If men perceive the most insignificant facts in the most diverse manner, even when it is impossible that these facts should produce on the observer any emotion preventing him from observing with absolute calm, how much more will their impressions be diversified under circumstances calculated to produce in the onlookers excitement, fear, or terror. The fact is that in such a state they are absolutely incapable of observing accurately. . . .

Recently the author had the opportunity of verifying this by an analogous circumstance. He was present at an execution at which for some reason or other the executioner wore gloves. After the execution he asked four officials who were present what was the color of the executioner's gloves. Three replied, respectively, black, gray, white; while the fourth stoutly maintained that the executioner wore no gloves at all. Yet all four were in close proximity to the scaffold; each replied without hesitation, and all four are still perfectly confident that they made no mistake. Again, a man of reserved and calm temperament, an old soldier, reported the day after a railway accident which he had witnessed, that there were at least one hundred dead, that he had himself on extricating himself from the smashed carriage seen many human heads, cut off by the wheels of the vehicles, rolling along the track. As a matter of fact, one man was killed and five persons wounded; all the rest was due to the imagination of a man ordinarily most composed, but at the moment suffering under strong excitement due to fear. Another railway accident furnishes an example of what a man in a state of terror can see and hear. A brewer, a veritable Hercules, in the prime of life and in no way nervous, having jumped from the smashed carriage, took to running across the fields to the neighboring town, three quarters of an hour's distance, in the full belief that he saw and heard the locomotive of the train puffing and blowing after him. This

man, the prey to his imagination, had run so hard that he caught an inflammation of the chest, from which he died some months afterwards. The fact that he thus ran with such excess of vigor proves conclusively that in his imagination he had really seen and heard the pursuing locomotive. It is interesting to note that in the murder of President Carnot by the Italian Caserio not a single person saw the blow struck, though the murderer had jumped upon the footrest of the carriage, pushed aside Carnot's arm, and thrust the dagger into his abdomen. In the carriage three gentlemen were seated, two grooms were standing behind, mounted officers were accompanying on either side, and yet no one saw the President stabbed; and the murderer would have easily escaped if he had refrained from calling out in a loud voice while running away: "Vive l'anarchie."

If the statement of the witness appears improbable, and if at the time of the occurrence he was in a state of excitement, his story must be criticised with the most minute and scrupulous care. If the improbability of the statement is glaring, there is no difficulty, because we are at once put upon our guard. The danger arises when the observation of the witness has been at fault, when he tells in perfect good faith a most likely story, and thus creates great confusion. A long investigation ensues and only at the end of it, if at all, is the mistake discovered.

205. FRANCIS L. WELLMAN. The Art of Cross-examination. (1908. p. 149.) ... Perhaps the most subtle and prolific of all of the "fallacies of testimony" arises out of unconscious partisanship. It is rare that one comes across a witness in court who is so candid and fair that he will testify as fully and favorably for the one side as the other. .. What is it in the human make-up which invariably leads men to take sides when they come into court?

.

In the first place, witnesses usually feel more or less complimented by the confidence that is placed in them by the party calling them to prove a certain state of facts, and it is human nature to try to prove worthy of this confidence. This feeling is unconscious on the part of the witness, and usually is not a strong enough motive to lead to actual perjury in its full extent; but it serves as a sufficient reason why the witness will almost unconsciously dilute or color the evidence to suit a particular purpose, and perhaps add only a bit here, or suppress one there, but this bit will make all the difference in the meaning. Many men in the witness box feel and enjoy a sense of power to direct the verdict towards the one side or the other, and cannot resist the temptation to indulge it and to be thought a fine witness" for their side. I say "their" side; the side for which they testify always becomes their side the moment they take the witness chair, and they instinctively desire to see that side win, although they may be entirely devoid of any other interest in the case whatsoever. It is a characteristic of the human race to be intensely interested in the success of some one party to a contest, whether it be a war, a boat race, a ball game, or a lawsuit. This desire to win seldom fails to color the testimony of a witness and to create fallacies and inferences dictated by the witness's feelings, rather than by his intellect or the dispassionate powers of observation. Many witnesses take the stand with no well-defined motive of what they are going to testify to, but upon discovering that they are being led into

statements unfavorable to the side on which they are called, experience a sudden dread of being considered disloyal, or "going back on" the party who selected them, and immediately become unconscious partisans and allow this feeling to color or warp their testimony.

There is still another class of persons who would not become witnesses for either side unless they felt that some wrong or injustice had been done to one of the parties, and thus to become a witness for the injured party seems to them to be a vindication of the right. Such witnesses allow their feelings to become enlisted in what they believe to be a cause of righteousness, and this in turn enlists their sympathy and feelings and prompts them to color their testimony, as in the case of those influenced by the other motives already spoken of. One sees, perhaps, the most marked instances of partisanship in admiralty cases which arise out of a collision between. two ships. Almost invariably all the crew on one ship will testify in unison against the opposing crew, and, what is more significant, such passengers as happen to be on either ship will almost invariably be found corroborating the stories of their respective crews. It is the same, in a lesser degree, in an ordinary personal injury case against a surface railway. Upon the happening of an accident the casual passengers on board a street car are very apt to side with the employees in charge of the car, whereas the injured plaintiff and whatever friends or relatives happen to be with him at the time, will invariably be found upon the witness stand testifying against. the railway company.

206. RICHARD WHATELY. Elements of Rhetoric; comprising an Analysis of the Laws of Moral Evidence. (ed. 1893. p. 83.) . . . A man strongly influenced by prejudice, to which the weakest men are ever the most liable, may even fancy he sees what he does not. And some degree of suspicion may thence attach to the testimony of prejudiced, though honest, men, when their prejudices are on the same side with their testimony. Otherwise, their testimony may even be the stronger. E.g. the early disciples of Jesus were, mostly, ignorant, credulous, and prejudiced men; but all their expectations - all their early prejudices - ran counter to almost everything that they attested. They were, in that particular case, harder to be convinced than more intelligent and enlightened men would have been. It is most important, therefore, to remember what is often forgotten that Credulity and Incredulity are the same habit considered in reference to different things. The more easy of belief any one is in respect of what falls in with his wishes or preconceived notions, the harder of belief he will be of anything that opposes these.

207. ROBERT HAWKINS' CASE. (G. L. CRAIK. English Causes Célèbres. 1844. p. 141.)

[The defendant, a clergyman, was charged with robbing one Larimore of money and jewelry. The defendant maintained that, owing to a dispute over church tithes, Larimore and others, including certain local magnates of an opposing faction, had concocted this charge of

robbery. Lord HALE presided at the trial at Aylesbury in 1668. The defendant, to prove Larimore's bias, called the village cobbler.]

John Chilton.- My Lord, I can say nothing, but that I am paid for my boots.

L. C. B.- What boots? Chil.