OF all disciplines necessary to the criminal justice
in addition to the knowledge of law, the most important are those derived
from psychology. For such sciences teach him to know the type of man
it is his business to deal with. Now psychological sciences appear in
various forms. There is a native psychology, a keenness of vision
given in the march of experience, to a few fortunate persons, who see
rightly without having learned the laws which determine the course of
events, or without being even conscious of them. Of this native psychological
power many men show traces, but very few indeed are possessed of as
much as criminalists intrinsically require.
In the colleges and pre-professional schools we jurists may acquire
a little scientific psychology as a ``philosophical propaedeutic,''
but we all know how insufficient it is and how little of it endures
in the business of life. And we had rather not reckon up the number
of criminalists who, seeing this insufficiency, pursue serious psychological
One especial psychological discipline which was apparently
created for our sake is the psychology of law, the development of which,
in Germany, Volkmar recounts. This science afterward developed, through
the instrumentality of Metzger and Platner, as criminal psychology.
From the medical point of view especially, Choulant's collection of
the latter's, ``Quaestiones,'' is still valuable. Criminal psychology
was developed further by Hoffbauer, Grohmann,
 W. Volkmann v. Volkmar: Lehrbuch der Psychologie
(2 vols.). C<o:>then 1875
 J. Metzger: ``Gerichtlich-medizinische Abhandhingen.'' Konigsberg
 Ernst Platner: Questiones medicinae forensic, tr. German by Hederich
 J. C. Hoffbauer Die Psychologie in ibren Hauptanwendungen auf die
Rechtspflege. Halle 1823.
 G. A. Grohmann: Ideen zu einer physiognomisehen Anthropologie. Leipzig
Heinroth, Sehaumann, Munch, Eckartshausen,
and others. In Kant's time the subject was a bone of contention between
faculties, Kant representing in the quarrel the philosophic, Metzger,
Hoffbauer, and Fries, the medical faculties. Later legal psychology
was simply absorbed by psychiatry, and thereby completely subsumed among
the medical disciplines, in spite of the fact that Regnault, still
later, attempted to recover it for philosophy, as is pointed out in
Friedreich's well-known text-book (cf. moreover V. Wilbrand's
Nowadays, criminal psychology, as represented by Kraus, Krafft-Ebing,
Maudsley, Holtzendorff, Lombroso, and others
has become a branch of criminal anthropology. It is valued as the doctrine
of motives in crime, or, according to Liszt, as the investigation of
the psychophysical condition of the criminal. It is thus only a part
of the subject indicated by its name. How utterly criminal psychology
has become incorporated in criminal anthropology is demonstrated by
the works of Nacke, Kurella, Bleuler, Dallemagne, Marro,
Ellis,Baer, Koch, Maschka, Thomson,
Ferri, Bonfigli, Corre, etc.
 Johann Heinroth: Grundzuge der Kriminalpsychologie.
 Schaumann: Ideen zu einer Kriminalpsychologie. Halle 1792.
 Munch: Uber den Einfluss der Kriminalpsychologie auf Pin System
der Kriminal-Rechts. Nurnberg 1790.
 Eckartshausen. Uber die Notwendigkeit psychologiseher Kenntnisse
bei Beurteilung von Verbreehern. Munchen, 1791.
 J. Fries: Handbuch der psychologischer Anthropologie. Jena, 1820.
 E. Regnault: Das gerichtliche Urteil der Arzte uber psychologische
Zustande. Coln, 1830.
 J. B. Friedreich: System der gerichtlichen Psychologie. Regensburg
 Wilbrand: Gerichtliche Psychologie. 1858.
 Kraus: Die Psychologie des Verbrechens. T<u:>bingen, 1884.
 v. Krafft-Ebing: Die zweifelhaften Geisteszust<a:>nde. Erlangen
 Maudsley: Physiology and Pathology of the Mind.
 v. Holtzendorff--articles in ``Rechtslexikon.''
 Lombroso: L'uomo delinquente, ete.
 Asehaffenburg: Articles in Zeitscheift f. d. gesamten Strafreehtwissensehaften,
especially in. XX, 201.
 Dr. P. Nacke: Uber Kriminal Psychologie,
in the above-mentioned Zeitschrift, Vol. XVII. Verbrechen und Wahnsinn
beim Weibe. Vienna, Leipsig, 1884. Moral Insanity: Arztliche Sachverst<a:>ndigen-Zeitung,
Neurologisches Zentralblatt, Nos. 11 and 16. 1896
 Kurella: Naturgesehichte des Verbreehers. Stuttgart 1893.
 Blenler: Der geborene Verbrecher. Munchen 1896.
 Dallemagne. Kriminalanthropologie. Paris 1896.
 Marro: I caratteri dei deliquenti. Turin 1887. I carcerati.
 Havelock Ellis: The Criminal. London 1890.
 A. Baer: Der Verbrecher Leipzig 1893.
 Koch. Die Frage nach dem geborenen Verbrecher. Ravensberg 1894.
 Maschka. Elandbuch der Gerichtlichen Medizin (vol. IV). Tubingen
 Thomson. Psychologie der Verbrecher.
 Ferri: Gerichtl. Psychologie. Mailand 1893.
 Bonfigli: Die Natugeschichte des Verbrechers. Mailand 1892.
 Corre: Les Criminels. Paris 1889.
Literally, criminal psychology should be _that form
of psychology used in dealing with crime_; not merely, the psychopathology
of criminals, the natural history of the criminal mind. But taken even
literally, this is not all the psychology required by the criminalist.
No doubt crime is an objective thing. Cain would actually have
slaughtered Abel even if at the time Adam and Eve were already dead.
But for us each crime exists only as we perceive it,--as we learn to
know it through all those media established for us in criminal procedure.
But these media are based upon sense-perception, upon the perception
of the judge and his assistants, i. e.: upon witnesses,
accused, and experts. Such perceptions must be psychologically validated.
The knowledge of the principles of this validation demands again a special
department of general psychology--even such a _pragmatic applied psychology
as will deal with all states of mind that might possibly be involved
in the determination and judgment
of crime_. It is the aim of this book to present such a psychology.
``If we were gods,'' writes Plato in the Symposium, ``there would be
no philosophy''--and if our senses were truer and our sense keener,
we should need no psychology. As it is we must strive hard to determine
certainly how we see and think; we must understand these processes according
to valid laws organized into a system-- otherwise we remain the shuttlecocks
of sense, misunderstanding and accident. We must know how all of us,--we
ourselves, witnesses, experts, and accused, observe and perceive; we
must know how they think,--and how they demonstrate; we must take into
account how variously mankind infer and perceive, what mistakes and
illusions may ensue; how people recall and bear in mind; how everything
varies with age, sex, nature, and cultivation. We must also see clearly
what series of influences can prevail to change all those things which
would have been different under normal conditions.
Indeed, the largest place in this book will be given
to the witness and the judge himself, since we want in fact, from the
first to keep in mind the creation of material for our instruction;
but the psychology of the criminal must also receive consideration where-ever
the issue is not concerned with his so-called psychoses, but with the
validation of evidence.
Our method will be that fundamental to all psychological
investigation, and may be divided into three parts:
1. The preparation of a review of psychological phenomena.
 P. Jessen: Versuch einer wissenschaftlichen Begrundung
der Psychologie. Berlin 1855.
2. Study of causal relationships.
3. Establishment of the principles of psychic activity.
The subject-matter will be drawn on the one hand, from
that already presented by psychological science, but will be treated
throughout from the point of view of the criminal judge, and prepared
for his purposes. On the other hand, the material will be drawn from
these observations that alone the criminologist at work can make, and
on this the principles of psychology will be brought to bear.
We shall not espouse either pietism, scepticism, or
criticism. We have merely to consider the individual phenomena, as they
may concern the criminalist; to examine them and to establish whatever
value the material may have for him; what portions may be of use to
him in the interest of discovering the truth; and where the dangers
may lurk that menace him. And just as we are aware that the comprehension
of the fundamental concepts of the exact sciences is not to be derived
from their methodology, so we must keep clearly in mind that the truth
which we criminalists have to attain can not be constructed out of the
_formal_ correctness of the content presented us. We are in duty bound
to render it _materially_ correct. But that is to be achieved only if
we are acquainted with
principles of psychology, and know how to make them serve our purposes.
For our problem, the oft-quoted epigram of Bailey's, ``The study of
physiology is as repugnant to the psychologist as that of acoustics
to the composer,'' no longer holds. We are not poets, we are investigators.
If we are to do our work properly, we must base it completely upon modern
psycho physical fundamentals.
Whoever expects unaided to find the right thing at the
right moment is in the position of the individual who didn't know whether
he could play the violin because he had not yet tried. We must gather
wisdom while we are not required to use it; when the time for use arrives,
the time for harvest is over.
Let this be our fundamental principle: _That we criminalists
receive from our main source, the witnesses, many more inferences than
observations_, and that this fact is the basis of so many mistakes in
our work. Again and again we are taught, in the deposition of evidence,
that only facts as plain sense-perceptions should be presented;
that inference is the judge's affair. But we only appear to obey this
principle; actually, most of what we note as fact
and sense-perception, is nothing but a more or less justified judgment,
which though presented in the honestest belief, still offers no positive
truth. ``Amicus Plato, sed magis amica Veritas.''
There is no doubt that there is an increasing, and for
us jurists, a not unimportant demand for the study of psychology in
its bearing on our profession. But it must be served. The spirited Abbè
de Baèts, said at a meeting of criminalists in Brussels, that
the _present tendency of the science of criminal law demands the observation
of the facts of the daily life_. In this observation consists the alpha
and omega of our work; we can perform it only with the flux of sensory
appearances, and the law which determines this flux, and according to
which the appearances come, is the law of causation.
But we are nowhere so neglectful of causation as in the deeds of mankind.
A knowledge of that region only psychology can give us. Hence, to become
conversant with psychological principles, is the obvious duty of that
conscientiousness which must hold first place among the forces that
conserve the state. It is a fact that there
has been in this matter much delinquency and much neglect. If, then,
we were compelled to endure some bitterness on account of it, let it
be remembered that it was always directed upon the fact that we insisted
on studying our statutes and their commentaries, fearfully excluding
every other discipline that might have assisted us,
and have imported vitality into our profession. It was Gneist who
complained: ``The contemporary low stage of legal education is to be
explained like much else by that historical continuity which plays the
foremost role in the administration of justice.'' Menger does not
mention ``historical continuity'' so plainly, but he points sternly
enough to the legal sciences as the most backward of all disciplines
that were in contact with contemporary tendencies.
That these accusations are justified we must admit, when we consider
what Stolzel and the genial creator of modern civil teaching demands:
``It must be recognized that jurisprudence in reality is nothing but
the thesis of the healthy human understanding in matters of law.'' But
what the ``healthy human mind'' requires we can no longer discover from
our statutory paragraphs only. How shameful it is for us, when Goldschmidt
openly narrates how a famous scientist exclaimed to a student in his
laboratory: ``What do you want here? You know nothing, you understand
nothing, you do nothing,--you had better become a lawyer.''
 R. Gneist: Aphorismen zur Reform des Rechtestudiums.
 A. Menger: in Archiv fin soziale Gesetzgebung
v. Braun II.
 A. St<o:>lsel: Schulung fin die Zivilistiche Praxis. 2d Ed.
 S. Goldschmidt: Rechtestudium und Priifungsordnung. Stuttgart 1887.
Now let us for once frankly confess why we are dealt
these disgraceful reproaches. Let us agree that we have not studied
or dealt with jurisprudence as a science, have never envisaged it as
an empirical discipline; that the aprioristic and classical tradition
had kept this insight at a distance, and that where investigation and
toward the recognition of the true is lacking, there lacks everything
of the least scientific importance. To be scientifically legitimate,
we need first of all the installation of the disciplines of research
which shall have direct relationships with our proper task. In this
way only can we attain that spiritual independence by means of
spiritual freedom, which Goldschmidt defines as the affair of the higher
institutions of learning, and which is also the ideal of our own business
in life. And this task is not too great. ``Life is movement,'' cried
Alois von Brinz, in his magnificent inaugural address. ``Life is
not the thought, but the thinking which comes in the fullness of
It may be announced with joy and satisfaction, that
since the publication of the first edition of this book, and bearing
upon it, there came to life a rich collection of fortuitous works which
have brought together valuable material. Concerning the testimony of
witnesses, its nature and value, concerning memory, and the types
of reproduction, there is now a considerable literature. Everywhere
industrious hands are raised,--hands of psychologists, physicians, and
lawyers, to share in the work. Should they go on unhurt we may perhaps
repair the unhappy faults committed by our ancestors through stupid
ignorance and destructive use of uncritically collected
 A. v. Brinz: Uber Universalitat. Rektorsrede
* HANS GROSS, J. U. D., Professor of Criminal Law at the University
of Graz, Austria. Formerly Magistrate of the Criminal Court at Czernovitz,