And when we remember the enormous number of crimes and offences which are not punished, for lack or inadequacy of evidence, and the frequency of trials which are based solely on circumstantial hints, it is easy to see the practical utility of the primary connection between criminal sociology and penal procedure.
The practical application of anthropometry to the identification of criminals, and to the question of recidivism, which was begun in Paris by M. Bertillon, and subsequently adopted by almost all the states of Europe and America, is too familiar to need description. It will be sufficient to recall the modifications of Bertillon's system by Anfosso, with the actual collection of anthropometric data, and their inclusion in the ordinary records of justice.
Thus the sphygmographic data on the circulation of the blood, which reveal the inner emotions, in spite of an outward appearance of calm or indifference, have already served to show that a person accused of theft was not guilty of it, but that he was on the contrary guilty of another theft, of which he had not been so much as suspected. On another occasion they established the innocence of a man condemned to death. We shall have more speaking and frequent illustrations when these inquiries have been placed regularly at the service of criminal justice.
The sphygmograph may also be useful in the diagnosis of simulated disease, after the example set M. Voisin in the case of a sham epileptic in Paris, ``whose sphygmographic lines have no resemblance to those of true epileptics before and after a fit, and <168>only resemble those produced by normal persons after a violent gesticulation.''
As for the possible utilisation of hypnotism, we must be cautious before we draw any legal conclusions from it; but it cannot be questioned that this is a valuable source of scientific aid in the systematic collection of criminal evidence.
But, for the present, the most certain and profitable aids in the collection of evidence are those afforded by the organic and psychical characteristics of criminals. In my study on homicide I reckoned up many psychological and psycho-pathological symptoms which characterise the murderer, the homicidal madman, and the homicide through passion. And in my professional practice I have often found by experience that there is a great suggestive efficacy in these psychological symptoms in regard to the conduct of a criminal, before, during, and after a crime; and it is important to bring this knowledge scientifically before detectives and judges.
These data are not applicable to accused persons exclusively. When we remember the enormous importance of oral evidence in the chain of criminal proof, and the rough traditional empiricism of the criteria of credibility, which are daily applied in all trials to all kinds of witnesses, by men who regard them, like the prisoners, as an average abstract type—excluding only the definite cases of inability to give evidence, which are defined beforehand with as much method as the cases of irresponsibility— the necessity of calling in the aid of scientific psychology and psycho-pathology is manifest.
For instance, not to dwell on the absurd violation of these traditional criteria of credibility, when police officers are admitted as witnesses (often the only witnesses) of resistance to authority or violence, wherein they are doubly interested parties, how often in our courts do we give a thought to the casual imaginations or credulity of children, women, weak-nerved or hysterical persons, and so on? Counsel for defence or prosecution who desired to know if any particular witness is or is not hysterical would bring a smile to the face of the judge, very learned, no doubt, in Roman law or legal precedents, but certainly ignorant in physiology, psychology, and psycho-pathology. Yet the tendency to slander in hysterical cases, which M. Ceneri urged so eloquently in a celebrated trial or the tendency to untruth in children, which M. Motet has ably illustrated, are but manifest and simple examples of this applicability of normal, criminal, and pathological psychology to the credibility of witnesses. And, under its influence, how much of the clear atmosphere of humanity will stimulate our courts of justice, which are still too much isolated from the world and from human life, where, nevertheless, prisoners and witnesses come, and too often come again, living phantoms whom the judges know not, and only see confusedly through the thick mist of legal maxims, and articles of the code, and criminal procedure.
Apart from these examples, which prove the importance of what M. Sarraute justly called ``judicial applications of criminal sociology,'' the fundamental reform needed in the scientific preparation of criminal
evidence is the creation of magisterial experts in every court of preliminary inquiry. In a question of forgery, poisoning, or abortion, the judge has recourse to experts in handwriting, chemistry, or obstetrics; but beyond these technical, special, and less frequent cases, in every criminal trial the basis of inquiry is or ought to be formed by the data of criminal biology, psychology, and psycho-pathology. So that, over and above the knowledge of these sciences which is necessary to judges, magistrates, and police officers, it is most important that an expert, or several experts in criminal anthropology should be attached to every court of criminal inquiry.
This would provide us with an anthropological classification, certain and speedy, of every convicted person, as well as a legal classification of the material fact, and we should avoid the scandal of what are known as experts for the prosecution and experts for the defence. There should be but one finding of experts, either by agreement between them or by a scientific reference to arbitration, as in the German, Austrian, and Russian system; and over this finding the judges and the litigants should have no other power than to call for explanations from the chief of the experts.
In this way we should further avoid the scandal of judges entirely ignorant of the elementary ideas of criminal biology, psychology, and psycho-pathology, like the president of an assize court whom I heard telling a jury that he was unable to say why an expert ``wanted to examine the feet of a prisoner in order to come to a decision about his head.'' This president,
who was an excellent magistrate and a learned jurist was wholly unacquainted with the elements of the theory of degeneracy, like one of his colleagues whom I heard saying, when the expert spoke of the abnormal shape of the ears of a prisoner (in accord with the inquiries of Morel and Lombroso), ``That depends on how the hat is worn.''
For in consequence of the assumption, made by Kant amongst others, that questions of mental disease belong to the philosopher rather than to the physician, and of the absurd and shallow idea which superficial persons entertain of those who are insane, picturing them as constantly raving, the judge or juryman who pins his faith to an expert in handwriting thinks himself above the necessity of taking the opinion of an expert in insanity.
It must be recognised, however, that this foolish assumption is partly due to a reasonable anxiety for the public safety, under the sway of the classical theories, which allow the acquittal and discharge of criminals who are found to be of unsound mind. It will eventually disappear, either by the wider diffusion of elementary ideas of psycho-pathology or by the application of positive theories, which are far from carrying the proved insanity of a prisoner to the dangerous and absurd conclusion of his acquittal.
After the first stage of the collection of evidence, during which we can admit the legal representation of the accused, especially for the sake of eliciting both sides of the question, without, however, going so far as the individual exaggerations of complete publicity for the preliminary inquiry, we come to the second
stage of procedure, that of the public discussion of the evidence.
The principals in this discussion represent the prosecution (public or private) and the defence; and for these, as I cannot go into great detail, I will only mention one necessary reform. That is the institution of a sort of public defence, by a legal officer such as used to be found in certain of the Italian provinces, under the title of ``advocate of the poor,'' who ought to be on a par with the public prosecutor, and to be substituted for the present institution of the official defence, which is a complete failure.
As for the actual discussion of evidence, when we have established the scientific rules of evidence, based upon expert acquaintance with criminal anthropology, and when we have eliminated all verbal contention over the precise measure of moral responsibility in the prisoner, the whole debate will be a criticism of the personal and material indications, of the determining motives, and the anthropological category to which the accused belongs, and of the consequent form of social defence best adapted to his physical and psychical character.
The practical conclusion of the criminal trial is arrived at in the third stage, that of the decision on the evidence.
So far as we are concerned, the criminal adjudication has the simple quality of a scientific inquiry, subjective and objective, in regard to the accused as a possible criminal, and in relation to the deed of which he is alleged to be the author. We naturally therefore require in the judge certain scientific
knowledge, and not merely the intuition of common sense.
But as the consultation of the jury, by reason of its inseparable political aspect, must take place in private, we can only insist on the fundamental reform of the judicial organisation, which alone can realise the scientific principle of criminal adjudication. It was Garofalo who, in the earlier days of the positive school, urged that civil and criminal judges ought to be wholly distinct, and that the latter ought to be versed in anthropology, statistics, and criminal sociology, rather than in Roman law, legal history, and the like, which throw no light on the judgment of the criminal.
Learned jurists, proficient in the civil law, are least fit to make a criminal judge, accustomed as they are by their studies to abstractions of humanity, looking solely to the juridical bearings, inasmuch as civil law is mostly ignorant of all that concerns the physical and moral nature of individuals. The demoralisation or uprightness of a creditor, for instance, has no influence for or against the validity of his credit.
The jurist, therefore, in a matter of criminal adjudication, entirely loses sight of the personal conditions of the accused, and the social conditions of the community, and confines his attention to the deed, and to the maxims of a so-called retributive justice. They who are called upon to try criminals ought to possess the ideas necessary to the natural study of a criminal man, and should therefore constitute an order of magistrates wholly distinct from that of civil judges.
The practical means of securing this fundamental reform of the judicial bench ought to begin with the organisation of the university, for in the courses of the faculty of law it will be necessary to introduce a more vigorous and modern stream of social and anthropological studies, which must also eventually put new life into the ancient maxims of the civil law.
In the second place, law students at the university ought to be admitted to what Ellero called a science of clinical criminology, that is to interviews with and systematic observations of prisoners. The first Congress of Criminal Anthropology approved the proposal of M. Tarde, upon the following motion of Moleschot- Ferri:—``The Congress, in agreement with the scientific tendency of criminal anthropology, is of opinion that prison authorities, whilst taking necessary precautions for internal discipline, and for the individual rights of condemned prisoners, should admit to the clinical study of criminals all professors and students of penal law and legal medicine, under the direction and responsibility of their own professors, and if possible in the character of societies for the aid of actual and discharged prisoners.''
Lastly, a special school should be founded for policemen and prison warders, with the object of securing detectives distinguished not only for their personal ability, but also for their knowledge of criminal biology and psychology.
To these reforms, which guarantee the scientific capacity of the criminal judge, we must add reforms which would secure his complete independence of
the executive authority, which is now the only authority responsible for the advancement and allocation of judges. But this independence would not be exempt from every kind of control, such as public opinion, and disciplinary authority to some extent distinct from thepersonnelof the bench; for otherwise the judicial authority would soon become another form of insupportable tyranny.
The most effectual mode of securing the independence of the judges is to improve their position in life. For admitting that a fixed stipend, payable every month, makes a man content with a somewhat lower figure, still it is certain that in these days, with a few honourable exceptions, the selection of judges is not satisfactory, because low salaries only attract such as could not earn more by the practice of their profession.
The personal character of the bench vitally affects the quality of the government as a whole. The most academic and exalted codes are of little avail if there are not good judges to administer them; but with good judges it matters little if the codes or statutes are imperfect.
In criminal law the application of the statute to the particular case is not, or should not be, a mere question of legal and abstract logic, as it is in civil law. It involves the adaptation of an abstract rule, in a psychological sense, to a living and breathing man; for the criminal judge cannot separate himself from the environment and social life, so as to become a more or less mechanicallex loquens. The living and human tests of every criminal sentence reside in
the conditions of the act, the author, and reacting society, far more than in the written law.
Herein we have an opportunity of solving the old question of the authority of the judge, wherein we have gone from one excess to another, from the unbounded authority of the Middle Ages to the Baconian aphorism respecting the law and the judge, according to which the law is excellent when it leaves least to the judge, and the judge is excellent when he leaves himself the least independent judgment.
If the function of the criminal judge were always to be, as it is now, an illusory and quantitative inquiry into the moral culpability of the accused, with the equally quantitative and Byzantine rules on attempt, complicity, competing crimes, and so forth—that is to say, if the law were to be applied to the crime and not to the criminal, then it is necessary that the authority of the judge should be restrained within the numerical barriers of articles of the code, of so many years, months, and days of imprisonment to be dosed out, just as the Chinese law decides with much exactitude the length and diameter of the bamboo rods, which in the penal system of the Celestial Empire have the same prominence as penitentiary cells have with us.
But if a criminal trial ought to be, on the other hand, a physio- psychological examination of the accused, the crime being relegated to the second line, as far as punishment is concerned, the criminal being kept in the front, then it is clear that the penal code should be limited to a few general rules on the modes of defence and social sanction, and on the constituent
elements of every crime and offence, whilst the judge should have greater liberty, controlled by the scientific and positive data of the trial, so that he may judge the man before him with a knowledge of humanity.
The unfettered authority of the judge is inadmissible in regard to the forms of procedure, which for the prosecuted citizen are an actual guarantee against judicial errors and surprises, but which should be carefully distinguished from that hollow and superstitious formalism which generates the most grotesque inanities, such as an error of a word in the oath taken by witnesses or experts, or a blot of ink on the signature of a clerk.
Scientific knowledge of criminals and of crime, not only as the deed which preceded the trial, but also as a natural and social phenomenon—this, then, is the fundamental principle of every reform in the judicial order; and this, too, is a condemnation of the jury. Whilst Brusa, one of the most doctrinaire of the Italian classical school, foretold a steady decline of the ``technical element'' in the magistracy, and consequently a persistent intervention of the popular influence in the administration of justice, the positive school, on the other hand, has always predicted the inevitable decline of the jury in the trial of crimes and ordinary offences.[16]
[16] It is interesting to observe that Carrara, in spite of his public advocacy of the jury, wrote in a private letter in 1870 (published on
the unveiling of his monument at Lucca):—``I
expressed my opinion as to the jury in 1841, in an article
published in theAnnals of Tuscan Jurisprudence—namely, that
criminal justice was becoming a lottery. Justice is being
deprived of her scales and provided with a dice-box. This seems
to me to be the capital defect of the jury. All other defects
might be eliminated by a good law, but this one is inseparable
from the jury. . . . Even amongst magistrates we may find the
harsh and the clement; but in the main they judge according to
legal argument, and one can always more or less foresee the issue
of a trial{.??} But with juries all forecast is rash and
deceptive. They decide by sentiment; and what is there more vague
and fickle than sentiment{. .??} . . With juries, craft is more
serviceable to an advocate than knowledge. I once had to defend a
husband who had killed his wife's lover in a caf
Theodore Jouffroy, after listening at the University of Pisa to a lecture by Carmignani against the jury, said, ``You are defending logic, but slaying liberty.''
Apart from the question whether liberty is possible without logic, it is nevertheless a fact that there is always a prominent political character in the jury. This accounts for the more or less declamatory defences of this judicial institution, which is no favourite with the criminal sociologist.
At the end of the eighteenth century, when there was a scientific and legislative tendency towards the creation of an independent order of magistrates, the French Revolution, mistrusting the whole aristocracy and social caste, opposed this tendency, believing enthusiastically in the omnipotence and omniscience of the people, and instituted the jury. And whilst in the political order it was inspired by classical antiquity, in the order of justice it adopted this institution from England. The jury was not un
known to the Republic of Athens and Rome, but it was developed in the Middle Ages by the ``barbarians,'' as an instrument which helped the people to escape from tyranny in the administration of the law. It used to be said that the jury made a reality of popular sovereignty, and substituted the common sense and good will of the people for the cold dogmatism of the lawyers, penetrated as they were by class prejudices. From this point of view the jury was too much in accord with the general tendency of the ideas of the day not to be greedily adopted. It was another example of the close connection between philosophic ideas, political institutions, and the judicial organisation.
The jury, transported to the Continent, in spite of the improvements recorded by Bergasse in his report to the Constituent Assembly, on August 14, 1789, was a mere counterfeit of that which it was, and is, in England. But its political character is still so attractive that it has many supporters to this day, though the results of its employment in various countries are not very happy.
Yet, as the jury is a legal institution, we must consider its advantages and defects, both from the political and from the legal point of view, and accept the conclusion forced upon us by the predominance of one or the other.
From the political standpoint, it is unquestionable that the jury is a concession to popular sovereignty; for it is admitted that the power of the law not only originates with the people, but is also directly exercised by them.
The jury may also be a guarantee of civic and political liberties as against the abuses of government, which are far more easy with a small number of judges, more or less subordinate to the government.
Again, the jury may be a means of affirming the sentiment of equality amongst citizens, each of whom may to-morrow become a judge of his equals, and of spreading political education, with a practical knowledge of the law. It is true that, with this knowledge of the law, juries also learn the details of every kind of crime, without the equally constant evidence of virtuous actions; and there is here a danger of moral contagion from crime. But, from the political point of view, it is certain that the jury may awaken, with a knowledge of the law, a consciousness of civic duties, which are too frequently undertaken as a forced and troublesome burden.
On these political advantages of the jury, however, a few remarks may be made.
In the first place, the concession to popular sovereignty is reduced to very small proportions by the limitations of the jury list, and of the functions of the jury, which legislation in every country is compelled to impose.
The essential characteristic distinguishing the jury from the judge is especially marked by the origin of their authority; for the jury is a judge simply because he is a citizen, whilst the magistrate is a judge only by popular election or appointment by the head of the State. So that any one who has entered on his civil and political rights, and is of the necessary age,
ought, according to the spirit of the institution, to administer justice on every civil or criminal question, whatever its importance, and not only in giving the final verdict, but also in conducting the trial. Yet not only is the ancient trial by popular assemblies impossible in the great States of our day, but also faith in the omniscience of the people has not availed to prevent all kinds of limitations in the principle of the jury. Thus the political principle of the jury is such that it cannot be realised without misapprehension, limitation, and depreciation.
In fact, even in England, where the jury can of its own motion declare in the verdict its opinions, strictures, and suggestions of reform, as arising out of the trial, it is always subject to the guidance of the judge, and it is not employed in the less serious and most numerous cases, on which the whole decision is left to magistrates, who apparently are not to be trusted to decide upon crimes of a graver kind.
And as for the other political advantages of the jury, experience shows us that the jury is often more injurious than serviceable to liberty.
In the first place, in continental States the jury is but an institution artificially grafted, by a stroke of the pen, on the organism of the law, and has no vital connection or common roots with this and other social organisms, as it has in England. Also the example of classical antiquity is opposed to the institution of the jury, which has been imposed upon us by eager imitation and political symmetry; for if the jury had disappeared amongst continental nations, this simply means that it did not find in the ethnic
types, the manners and customs, the physical and social environments of these nations, an adequate supply of vitality, such as it has retained, for instance through so many historical changes, amongst the Anglo-Saxons.
And if sometimes the jury can withstand the abuses of government, still too frequently it does not withstand its own passions, or the influence of the social class (thebourgeoisiein our own day), to which nearly all juries belong. It is notorious, in fact, that the jury is more rigorous in regard to prisoners accused of crimes against property than in regard to those accused of crimes against the person, especially crimes instigated by personal motives such as hate, vengeance, or the like; for every juryman thinks that he himself might be a victim of the exploits of a thief, or the attacks of a murderer for the sake of gain; whereas there is less reason to fear a murder provoked by vengeance, an outrage, an embezzlement of public money, or the like. And Macchiavelli said that men would rather have blood drawn from their veins than money from their pockets.
Besides, the same jury which will resist pressure from the Government does not resist popular pressure, direct or indirect, especially in view of the secrecy of their individual votes. No doubt there are noble exceptions; but society is made up of average virtues, and only upon them can it count.[17]
[17] In Dublin, for the trial of the murderers of Burke and Lord Frederick Cavendish, in 1883, the empanelling of the jury was very difficult, for nobody was willing to expose himself to the vengeance of the fanatics.
And when it is continually asserted, in the words
of Jouffroy, that the jury is an outpost of liberty, or in those of Carrara, that it is its necessary complement, we have to remark that this would be true if the jury were instituted by a despotic government; but when popular liberties have far more effectual guarantees in the political organisation of the State, then this quality of the jury is more apparent than real.
In fine, either the government is despotic, and then juries are not strong enough to preserve liberty, as in England from the time of Henry VIII. to that of James II.; or, as Mittermaier said, ``when authority is corrupt, and the judge is cowardly or terrorised, a jury cannot assist in the defence of liberty.'' Or else the government is liberal, and then the judges also are independent, so that there is no need of juries, especially with the guarantees of their independence which I have already indicated.
Now history reminds us that the jury is never instituted by despotic governments. It was refused, for instance, in upper Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in Lombardy by Austria in 1849, and in our own day in Russia, for political crimes, though it is allowed for ordinary crimes.
Thus the jury, as a political and liberal institution, is oddly destined to be excluded when it would be serviceable, and to be useless when it is admitted. It reminds us of the destiny of the National Guard.
But, even in England, the jury is regarded as especially a legal institution; and the main qualities attributed to it in this connection are moral judgment and private conviction.
The law, we are told, has always a certain harshness and insufficiency, for it ought to provide for the future whilst grounding itself on the past, whereas it cannot foresee all possible cases. Progress is so rapid and manifold, in modern society, that penal laws cannot keep pace with it, even though they are frequently recast—as for instance in Bavaria, which in one century has had three penal codes, and in France, where an almost daily accumulation of special laws is piled upon the original text of the most ancient code in Europe.
The jury, by its moral judgment, corresponding in some degree to the equity of the ancients, is able to correct thesummum juswith verdicts superior to the written law. And, in addition, the jury always follows its private conviction, the inspiration of sentiment, the voice of the conscience, pure instinct, in place of the stern and artificial maxims of the trained lawyer.
I do not deny these qualities of the jury; but I very much suspect that they are serious and dangerous vices rather than useful qualities in a legal institution.
In the first place, I believe that the distinction of powers or social functions, corresponding to the natural law of division of labour, ought not to be destroyed by the jury. The duty of the judicial power, before everything else, is to observe and apply the written law; for if we once admit the possibility that the judge (popular or trained) has to amend the law, all guarantee of liberty is lost, and the authority of the individual is unlimited. As I have said above,
we allow the authority of the judge only when we have actual guarantees of his capacity and independence, and always within the limits of the general precepts of the law, and under the control of a superior disciplinary power.
But the omnipotence of the jury, liberated from all reasonable regulation, with no directing motives for its verdict, and no possibility of control, is a two-edged blade, which may sometimes improve upon the law, or at least usefully indicate to the legislator the tendencies of public opinion in regard to a particular crime. But it may also violate the law, and the liberty of the individual, and then we pay too dear for the slight advantage which the jury can confer, and which might be replaced by other manifestations of public opinion. In any case, as Bentham said, it is better to have our remedy in the law than in the subversion of the law.
As for private conviction, we willingly admit that no system of legal proof is acceptable. But it is one thing to substitute for the legal and artificial assurance of the law the assurance of the judge who tries the case, and quite another thing to substitute for conviction founded on argument, and for a critical examination of the evidence collected during the trial, the blind and simple promptings of instinct or sentiment.
Even apart from technical notions, which we consider necessary to the physio-psychological trial of any accused person, social justice certainly cannot be dispensed through the momentary and unconsidered impressions of a casual juryman. If a criminal trial
consisted of the simple declaration that a particular action was good or bad, no doubt the moral consciousness of the individual would be sufficient; but since it is a question of the value of evidence and the examination of objective and subjective facts, moral consciousness does not suffice, and everything should be submitted to the critical exercise of the intellect.
To the instinctive blindness of the judgment of juries we must add their irresponsibility.
No doubt if the legislator required from all judges a simple Yes or No, then perhaps the jury would be as good as the magistrate. But instead of the unexplained verdict which Carmignani called ``the method of the cadi,'' we are of opinion that there should always be substituted a sentence based on reasons and capable of control, especially in the positive system of criminal procedure, which demands from the judge an acquaintance with anthropology and criminal sociology, and from his sentence the elements necessary to the subsequent treatment of the convict, in agreement with the characteristics of his individuality and of his crime.
But not only is the jury devoid of the qualities attributed to it; it has a fatal defect, which alone is sufficient to condemn this institution of the law.
In the first place, it is not easy to understand how a dozen jurymen, selected at hazard, can actually represent the popular conscience, which indeed frequently protests against their decisions. In any case, the fundamental conception of the jury is that the mere fact of its belonging to the people gives it the right to judge; and as the ancient assemblies are no
longer possible, the essence of the jury is that chance alone must decide the practical exercise of this popular prerogative.
Now these two conceptions of the jury are in manifest contradiction with the universal rule of public end private life, that social functions should be exercised by persons selected as most capable.
Thus in everyday life we all require of every labourer the work of which he is more particularly capable. No one would dream, for instance, of having his watch mended by a cobbler. The administration of criminal justice, on the contrary, is demanded of any one we chance to come across, be he grocer or man of independent means, painter or pensioner, who may never in his life have witnessed a criminal trial!
The irregularity of our statutes corresponds to the incapacity of individual jurymen; for it is evident that we cannot impose the rigorous process of a special mode of procedure on the first- comer. And the law heightens the absurdity by plainly declaring that juries must give their decision without regard to the consequences of their verdict! ``Jurymen fail in their highest duty when they have regard to the penal law, and consider the consequences which their verdict may have upon the accused'' (Article 342 of the French code of criminal procedure).
That is to say, criminal justice should be based on the neglect of the elementary rule of justice, according to which every man ought always to consider the possible consequences of his actions. And the criminal law demands from juries this proof of
their blindness (which is fortunately impossible) that they should judge blindfold, with no regard for the prisoner, or for the consequences which their verdict may have upon him.
It was impossible that the advocates of the jury should fail to see the absurdity of these principles; and they have been compelled to slur them over, at any rate in ordinary practice.
In respect of the composition of juries, restrictions have been introduced, by means of lists of eligible persons, selection by lot, the optional exclusion of a certain number of jurymen by the public prosecutor and the defence, &c. All these expedients, however, some of which are imposed by necessity, can only insure a general and presumptive capacity, for they have the merely negative effect of contributing to exclude the most manifest moral or intellectual incapacity. But the only capacity which is necessary in a judge, which is a special and positive capacity, is not guaranteed by these restrictions, which, after all, are a negation of the very principle of the jury.
And even if the jury were always composed of persons of adequate capacity, it would still be condemned by two inevitable arguments of human psychology.
First, the assembling of several individuals of typical capacity never affords a guarantee of collective capacity, for in psychology a meeting of individuals is far from being equivalent to the aggregate of their qualities. As in chemistry the combination of two gases may give us a liquid
so in psychology the assembling of individuals of good sense may give us a body void of good sense. This is a phenomenon of psychological fermentation, by which individual dispositions, the least good and wise, that is the most numerous and effective, dominate the better ones, as the rule dominates the exceptions. This explains the ancient saying, ``The senators are good men, but the Senate is a mischievous animal.''
And this fact of collective inferiority, not to say degeneracy, is observed in casual assemblies, such as juries, meetings, and the like, far more than in organised and permanent councils of judges, experts, &c.
Secondly, the jury, even when composed of persons of average capacity, will never be able in its judicial function to follow the best rules of intellectual evolution.
Human intelligence, in fact, both individual and collective, displays these three phases of progressive development: common sense, reason, and science, which are not essentially different, but which differ greatly in the degree of their complexity. Now it is evident that a gathering of individuals of average capacity, but not technical capacity, will in its decisions only be able to follow the rules of common sense, or at most, by way of exception, the rules of reason—that is, of their common mental habits, more or less directed by a certain natural capacity. But the higher rules of science, which are still indispensable for a judgment so difficult as that which bears on crimes and criminals, will always be unknown to it.
As for the irregularity of the action of a jury, it has been deemed that this can be provided against by the formal distinction between a decision of fact and a decision of law, in obedience to the advice of Montesquieu, that ``to the popular judgment we should submit a single object, a fact, a single fact.''
But without dwelling on the remark of Hye-Glunek, that in this way
the legal problem, which ought to be as indivisible as the
syllogism which creates it, is cut into two parts, it is evident
that Cambac
In fine, not only under the positive system of criminal procedure, which demands of the judge, in addition to legal conceptions of crime, some anthropological and sociological knowledge of criminals, but even at the present day it is more correct to say that the jury is concerned with the crime—that is, in the words of Binding, with a legal fact, and not merely a material fact; whilst the judge is concerned with the punishment. Thus, in the Assize Court, the separation of the judgments is not between fact and law, but only between the crime and the punishment
Even admitting the possibility of this separation of fact and law, logic and experience have already belied the assertion of those who say with Beccaria that, ``for the appreciation of facts, ordinary intelligence is better than science, common sense better than the highest mental faculties, and ordinary training better than scientific.''
On the contrary, a criminal trial is not only concerned with the direct perception of facts, but also and especially with their critical reconstruction and psychological appreciation. In civil law the fact is really accessory, and both sides may be agreed in its exposition, whilst disputing about the application of the law to this fact. But in criminal justice the fact is the principal element, and it is not merely necessary to admit or to decide upon this or that detail, but we have also to regard its causes and effects, from the individual and the social point of view, without speaking of the common difficulty of a critical and evidential appreciation of a mass of significant circumstances. So that, as Ellero said, in a criminal trial the decision as to fact is far more difficult than that as to law. And by this time daily practice has accumulated so many proofs, more or less scandalous, of the incapacity of the jury even to appreciate facts, that it is useless to dwell upon them.
To conclude this question of the jury, it remains to speak of its defects, which are not the more or less avoidable consequences of a more or less fortunate application of the principle, which might be the case with any social institution, but, on the contrary, are an inevitable consequence of the laws of psychology and sociology.
So far as science is concerned, a fact exists in connection with a general law. For common sense, on the other hand, the actuality of the particular fact is the only matter of concern. Hence the inevitable tendency of the jury to be dominated by isolated
facts, with no other guide than sentiment, which, especially in southern races, confines all pity to the criminals, whilst the crime and its victims are all but forgotten. The very keenness of sentiment which would urge the people to administer ``summary justice'' on the criminal, when surprised in the fact, turns entirely in his favour when he is brought up at the assizes, with downcast mien, several months after the crime. Hence we obtain an impassioned and purblind justice.
And the predominance of sentiment over the intelligence of the jury is revealed in the now incurable aspect of judicial discussions. There is no need and no use for legal and sociological studies and for technical knowledge; the only need is for oratorical persuasiveness and sentimental declamations. Thus we have heard an advocate telling a jury that, ``in trials into which passion enters, we must decide with passion.'' Hence, also, the deterioration of science in the Assize Courts, and its faulty application, and its completely erroneous consequences.
Moreover, the verdict of the jury cannot represent the sum of spontaneous and individual convictions—not only in countries where juries are exposed to all kinds of influences during the adjournments of the discussion, but even in England, where unanimity is required, and where all communication of the jury with the outer world is forbidden until the end of the trial. For in every case the influence of the most intriguing or most respected jurymen in the jury's room is always inevitable. So that we have even
had irresponsible suggestions of public deliberation on the part of the jury.
Against these defects of the jury its advocates have set an objection in regard to the trained judge, namely that the habit of judging crimes and offences irresistibly inclines the judge to look upon every prisoner as guilty, and to extinguish the presumption of innocence even in cases where it would be most justified.
This objection has really a psychological basis; for the conversion of the conscious into the unconscious, and the polarisation of the intellectual faculties and dispositions, are facts of daily observation, determined by the biological law of the economy of force. But it is not sufficient to make us prefer juries to judges.
In addition to the fact that this mental habit of judges may be counteracted by a better selection of magistrates under the reforms which I have indicated, it is to be observed that this presumption of innocence, as we have seen, is not so absolute as some would have us believe, especially in case of a trial which follows upon a series of inquiries and proofs in; the preliminary hearing.
Again, this tendency of judges is restrained and corrected by the
publicity of the discussions. And all, or nearly all, the famous
and oft-repeated instances of judicial errors go back to the time
of the inquisitorial and secret trial—in regard to which an
interesting historical problem presents itself; that is to say the
co-existence of the inquisitorial trial, which impairs every
individual guarantee, with the political liberties of the
medi This is why the number of acquittals, and of the admission of
extenuating circumstances, is always very remarkable, even in the
Correctional Tribunals, which in Italy show proportions not
greatly differing from those of the Assize Courts. We must remember that, under our modern penal procedure, it is not
the individual guarantees that are lacking, such as the assigning
of reasons for the sentence, the almost total abolition of
punishments which cannot be reconsidered, appeals, reversals,
revision, which would be still more efficacious under the positive
system which we propose. One logical consequence of the psychological objection raised
against judges would be the granting of a jury even in the
Correctional Tribunals, though the experience which we have of it
in the Assize Courts is not so encouraging as to leave many
advocates of a jury in the minor courts. But a decisive objection, founded on the most positive data of
sociology, can be raised against the jury. The law of natural evolution proves that no variation in the
vegetable or animal organism is useful or durable which is not the
outcome of a slow and gradual preparation by organic forces and
external conditions. Thus an organ which ceases to have a
function to discharge is subject to atrophy, and no new organ is
possible or capable of development if it is not required by a new
function to which it corresponds. What has been said of organic variations is also true of social
institutions. And when the jury is contemplated from this point
of view, we see that it has been artificially grafted by a
stroke of the legislator's pen on the judicial institutions of the
continent, without the long-continued, spontaneous and organic
connections which it had, for instance, with the English people.
The jury had even disappeared from the continental countries in
which it had left traces of former existence; for it had not found
in the race-characteristics or the social organism that favourable
environment which is supplied in England by the natural groundwork
of institutions and principles which, as Mittermaier says, are its
necessary correlative. The jury, as it has been politically established on the continent
of Europe, is what Spencer calls a false membrane in the social
organism, having no physiological connection with the rest of the
body politic. So that it is not yet acclimatised, even in France,
after a century of uninterrupted trial.[18] [18] The actual state of the law in Europe, so far as regards the
jury for common crimes and offences, is as follows:—England,
Scotland, Ireland, and Switzerland have the jury for assizes and
courts of first instance. France, Italy, Cisleithan Austria,
Istria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria,
Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia,
and Malta, have the criminal jury only. Spain had suspended it,
but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have
the criminal jury andechevins(bodies of citizens sitting with
the judges) for correctional and police cases. Denmark, Sweden,
and Finland, have theechevins. Holland, Norway, Hungary,
Slavonia, Poland, Servia, and Turkey, have neither juries nor
_echevins__. As for the other bio-sociological law, of single organs for single
functions, it seems to me that if in England the jury and the
magistracy have been developed side by side and interwoven, this
is only a case of organic integration. But on the continent, as
the jury has been added artificially to the magistracy,
this is on the other hand a genuine example of non-natural growth. And if it be said that the jury, as an advance from the
homogeneous to the heterogeneous, indicates a higher degree of
social evolution, we must draw a distinction between
differentiations which amount to evolution and those which, on the
contrary, are symptoms of dissolution. Division of labour,
physiological or social, is a true evolutionary differentiation;
whilst modifications introduced by a disease in the animal
organism, or by a revolt in the social organism, are but the
beginning of a more or less extended dissolution. Now the jury belongs to the domain of social pathology, for it is
essentially contrary to the law of the specialisation of
functions, according to which every organ which becomes more
adapted to a given task is no longer adapted to any other. It is
only in the lower organisms that the same tissue or organ can
perform different functions, whilst in the vertebrates the stomach
can only serve for digestion, the lungs for oxygenation, and so
on. Similarly in primitive societies, each individual is soldier,
hunter, tiller of the soil, &c., whilst with the progress of
social evolution every man performs his special function, and
becomes unfitted for other labours. In the jury we have a return
to the primitive confusion of social functions, by giving to any
chance comer, who may be an excellent labourer, or artist, a very
delicate judicial function, for which he has no capacity to-day,
and will have no available experience to-morrow.
In modern societies, to tell the truth, there is another function
assigned to all citizens, outside of their special capacity, and
that is the electoral duty. But the cases are very different.
The franchise does not demand a labour so difficult and delicate
as critical judgment, and the reconstruction of the conditions of
an act and of its author. It has no direct influence on the
positive function of the person elected, but on the contrary it is
a confession of the special incapacity of the elector to do what
he intrusts to the capacity of the person elected. The franchise
is but an elementary function of the assimilation of physiological
elements in the social organism, which in the animal organism is
performed by the aggregate of living cells, and in society by the
aggregate of individuals, not being idiots or criminals, who
possess the minimum of social energy. Far different is the administration of criminal justice, a
technical and very noble function, which has nothing in common
with the elementary function of the franchise. I could not indeed
agree with the assertion of Carrara, who thought it a
contradiction to deny to the people any participation in the
exercise of the judicial authority when they are allowed to
participate in the exercise of legislative authority. In the
first place, the people have but a very indirect share in the
legislative function, and, even where the referendum exists, very
useful as I believe it to be, the people have only a simple,
almost negative function, to say Yes or No to a law which they
have not made, and would have had no technical ability to make.
Thus the argument of Carrara could only lead to the popular
election of judges, as of legislators, and to a control by the
people of the administrative action of the judges when elected No
doubt this would have theoretical advantages, though in my opinion
it would raise practical difficulties, especially in nations which
do not possess a very keen conscience and political activity,
after enfeeblement by centuries of despotism, or of political and
administrative tutelage and centralisation. The jury, then, is a retrogressive institution, as shown by
history and sociology, for it represents the medi But the only possible conclusion from the foregoing criticisms is
that the jury should be abolished for the trial of common crimes,*afterthe introduction of reforms which would ensure the
capacity and independence of the judges. Meanwhile, since it is much easier to establish a new social
institution than to abolish one, it is worth while to indicate the
principal and most urgent reforms which should be made in the jury
system, so as to eliminate its more serious and frequent
disadvantages. The theoretical distinction of the classical school between
ordinary and political crimes is not very precise, for the so-
called political crimes are either not crimes (as when they are
confined to the manifestation of an idea), or they are common
crimes which spring from a lofty and social passion in
individuals, who have the characteristics of the criminal by
passion, or, in other words,—are but quasi-criminals; or else
they are common crimes committed by ordinary malefactors, under
the pretext of a popular idea. Instead of distinguishing crimes,
I think we ought to distinguish between ordinary and political
criminals, according to their determining motives, and the social
bearings and historical moment of their acts. At the same time,
whilst our criminal laws retain this distinction, I think it is
useful to keep the jury for the trial of political crimes and
offences, and for those connected with the press and with society
as a whole; for if in these cases the jury might yield to the
influence of class interests and prejudices (as for instance in
the trial of actions arising out of the conflict of capital and
labour), the danger will still be less than it would be with
judges alone, who are not sufficiently independent of the
executive, which in its turn is but the secular arm of the
dominant class, and which therefore combines the interests and
prejudices of the political order with those of the economic and
moral order which dominate the jury. For common crimes it would be necessary to with hold from a
jury the trial of prisoners who avow their crime. The essence of
a trial by indictment is the principle that the discussion as to
punishment is a private affair, and it has no further ground for
existence when one of the parties withdraws from the duel. Hence
the English mistrust of a prisoner's confession of guilt, which in
the inquisitorial trial, on the other hand, is a mainstay of the
evidence. Yet I believe that in these cases the Scottish system
is preferable to the English. In England the judge begins by
asking the prisoner if he is Guilty or Not Guilty, and in case of
a confession he passes sentence without a verdict from the jury.
In Scotland, on the contrary, the prosecutor can furnish his
proof, in spite of the confession of the prisoner, and demand a
verdict from the jury. In this way it is possible to avoid not
only a scandalous acquittal of prisoners who have confessed their
guilt (as happens in Italy, France, and elsewhere), but also the
danger that the confession may not be true, and that an innocent
man may be condemned. Juries ought, moreover, as proposed by M. Ellero, to specify
attenuating circumstances, on each of which a special question
ought to be put to them. The jury ought also to have the right of spontaneously finding in
a sense less serious than that of the charge, even when no
corresponding question has been put to them. But at the same time it cannot be denied that these would only be
palliatives, more or less efficacious. The only positive conclusion is that, whilst retaining the jury
for crimes of the political and social order, we should aim
at its abolition for common crimes, immediately after securing
stringent reforms as to the independence and capacity of the
judges. It needs no further demonstration that the modern organisation of
punishment, based partly on the assumption that we can measure the
moral culpability of criminals, and partly on an illusion as to
their general amendment, and almost entirely reduced, in
consequence, to imprisonment and the cell system, has absolutely
failed to protect society against crime. Holtzendorff, one of the best known of the classical school,
frankly confessed that ``the prison systems have made shipwreck.''
So also in Italy we have had disquisitions ``on the futility of
repression,'' and in Germany it has been held that ``existing
criminal law is powerless against crime.'' Thus the necessity of
taking steps to counteract this failure is forced upon us more and
more every day. We must proceed either by way of legislative
reforms, as effectual as we can make them, but always inspired by
reaction against the established prison system, or by a propaganda
on scientific lines. The most striking form which has been taken
by the latter process is the International Union of Penal Law,
which in 1891, two years after its foundation, numbered nearly six
hundred members of various nationalities, and which in the second
clause of its charter, in spite of the varied reservations of a
few members, notably supported the positive theories. The defects of the penal system inspired by the theories of
the classical school of criminal law, and by the actual
regulations of the classical prison school, may be briefly summed
up. They are, a fallacious scale of moral responsibility;
absolute ignorance and neglect of the physio-psychological types
of criminals; intervals between verdict and sentence on the one
hand, and between the sentence and its execution on the other,
with a consequent abuse of pardons; disastrous practical effects
of corruption and of criminal association in prisons; millions of
persons condemned to short terms of imprisonment, which are
foolish and absurd; and a continuous, inexorable increase of
recidivism. So that the tribunals of Europe, as M. Prins observed, with the
absolute impersonality of modern justice, allow their sentences to
fall upon unhappy wretches as a tap allows water to fall drop by
drop upon the ground. Without counting fines or police detention, there were sentenced
in Italy, in the ten years 1880-89, to various terms of
imprisonment, 587,938 persons by the Pretors, and 465,130 by the
Correctional Tribunals. That is, more than a million terms in the
minor courts within ten years! And the total number sentenced in Italy to various punishments, by
Pretors, Tribunals, and Assize Courts, in the same ten years, was
not less than 3,230,000. As for recidivism, without repeating the familiar figures of its
annual increase, it will suffice to recall the astounding fact to
which I drew attention before the central Commission of Legal
Judicial Statistics. That is to say, amongst the prisoners
condemned in 1887 for simple homicide, there were 224 who had been
already condemned, either*for the same crime(63), or for a
crime mentioned in the same section of the penal code (181); and
even of those condemned for qualified manslaughter, 78 had already
been condemned, either*for the same crime(8), or for one of
like character. In France we have figures equally striking, for they relate not to
the effect of exceptional conditions, or conditions peculiar to
this or that country, but to the uniform consequence of the
classical theories of criminal law and prison organisation. The total number condemned to imprisonment by the French
tribunals, and detained by the police, in the ten years 1879-88,
was 1,675,000; the Tribunal sentences under six days being
113,000. And the total condemned to punishments of various kinds, by Assize
Courts, Tribunals, and police courts, reached in the same ten
years the enormous number of 6,440,000 individuals! The meaning of this is that penal justice at the present moment is
a vast machine, devouring and casting up again an enormous number
of individuals, who lose amongst its wheels their life, their
honour, their moral sense, and their health, bearing thenceforth
the ineffaceable scars, and falling into the ever-growing ranks of
professional crime and recidivism, too often without a hope of
recovery.[19] [19] As regards recidivism and the enormous numbers tried, England
is in as bad a position as Italy and France. See my articles in
_Nineteenth Century__, 1892, and _Fortnightly Review__, 1894.—ED. It is impossible, then, to deny the urgent necessity of
substituting for our present penal organisation a better system
corresponding to the governing conditions of crime, more effectual
for social defence, and at the same time less gratuitously
disastrous for the individuals with whom it deals. The positive school, in addition to the partial reforms proposed
by Lombroso, and by myself in the second edition of this work, has
put forward in theCriminologyof Garofalo a ``rational system
of punishment,'' whereof it is desirable to give a summary. I. MURDERERS (moral insensibility and instinctive
cruelty) who commit— Murder for greed, or other selfishgratification Criminal Lunatic Asylums: orMurder unprovoked by the victim the death penalty.Murder with attendant cruelty II. VIOLENT OR IMPULSIVE CHARACTERS (deficiency
of the sense of pity, with prejudices on the
subject of honour, on the duty of revenge, &c.).
Adults who commit— Violent assault suddenly provoked Removal of the offender from the
by a cruel injury neighbourhood of the victim or
Justifiable homicide in self-defence his family. Transportation to an island, colonyHomicide to avenge honour (isolated or village—at liberty, underor endemic) supervision (for an indefiniteperiod, with from 5 to 10 yearssupervision). Bodily injury during a quarrel; Damages and fine: heavy for suchslight and transitory malice; as can pay. Alternativeblows; threats; slander; verbal penalty:—deduction from wages,insults or forced labour. Imprisonmentin case of refusal. Malicious injury or disfigurement; Criminal lunatic asylum (formutilation; rape or outrage with hysterical or epileptic), orviolence; restraint on personal Transportation for an indefiniteliberty period, with supervision from 5to 10 years.
Young persons who commit— Criminal lunatic asylums (forthose with congenitalCrimes of violence without excuse, tendencies).or rape Penal colony in case of relapse.Transportation without constraint. III. DISHONEST CRIMINALS. Adults who commit— Habitual theft, swindling, incendiarism, Lunatic asylums (if insane orforgery, extortion epileptic). Transportation. Labour-gangs (unfixed periods);Occasional theft; swindling; or suspension of right to exerciseforgery; extortion; incendiarism a profession, until completereparation of damage. Peculation; embezzlement; sale of Loss of office. Suspension ofoffices; abuse of authority civil rights. Fine. Restitution. Reparation of damage (with optional
Incendiarism; vindictive destruction imprisonment). Criminal
of property (without personal lunatic asylums (for the insane).
injury) Transportation (for recidivists). Bankruptcy, when due to malpractice Restitution. Prohibition to trade
or to discharge public functions. Uttering false coin; forgery of stock Imprisonment (unfixed periods)
and certificates; personation, and fine, in addition to loss of
false witness, &c. office, and restitution. Bigamy, palming or concealment of Banishment for unfixed periods.
birth Young persons who commit— An agricultural colony (for unfixedTheft, swindling, &c. periods). IV. Persons guilty of— Outbreaks, resistance or disobedience Imprisonment (for unfixed periods)to authority In other words, the system of repression proposed
by M. Garofalo amounts to this:—
Absolute elimination of the criminal
Penalty of death Criminal lunatic asylum.Transportation with liberty.Perpetual banishment.Relative elimination Banishment for various periods.Agricultural colonies.Interdiction from a particularneighbourhood. By payment of money.Reparation of damages Deduction from wages.Fine (going to the State) Forced labour, withoutIndemnification of the victims imprisonment. Imprisonment for fixed periods for special offences (forgery and outbreaks);
or as alternative to indemnification or forced labour.
Interdiction of certain professions and public functions. M. Liszt also, agreeing with the positive school in regard to the
necessity of a radical reform in the penal system, yet with
certain reservations, has propounded a scheme, which, however, as
it does not sufficiently consider various classes of criminals,
whom he divides merely into the habitual and the occasional, would
need completion, especially in comparison with the well-reasoned
scheme of Garofalo. M. Liszt's system is as follows:— Punishment by fines. In proportion to the property of the
offender—not alternative with Foroffences(with alternative
imprisonment imprisonment). Capable of being worked out by Forcontraventions of the lawforced labour without imprisonment (without imprisonment). Conditional sentences. For first offenders condemned to
imprisonment, with or without Foroffencespunishable by sureties for three years imprisonment.
__Imprisonment_ (for an indeterminate period, a maximum and minimum being enacted).
Separate confinement—six weeks to two years. House of detention (separate for 2 to 15 years (with policeone year, then gradual relaxation supervision and assistance ofdischarged prisoners)—or for life. Indemnifications(always as a civil liability) added to other penalties. I believe, however, that it is necessary, before laying down
practical and detailed schemes, more or less complete, to
establish certain general criteria, based upon the
anthropological, physical, and social data of crime, such as may
lead up to a positive system of social defence. These fundamental criteria, it seems to me, can be reduced to the
three following:—(1) No fixity in the periods of segregation of
criminals; (2) the social and public character of the exaction of
damages; (3) the adaptation of defensive measures to the various
types of criminals. 1. For every crime which is committed, the problem of punishment
ought no longer to consist in administering a particular dose, as
being proportionate to the moral culpability of the criminal; but
it should be limited to the question whether by the actual
conditions (breach of law or infliction of injury) and by the
personal conditions (the anthropological type of the criminal) it
is necessary to separate the offender from his social environment
for ever, or for a longer or shorter period, according as he is or
is not regarded as capable of being restored to society, or
whether it is sufficient to exact from him a strict reparation of
the injury which he has inflicted. Under this head there is a radical contradiction. The
existing schemes of punishment, differing in their machinery (and
out of harmony with the sentence of the judge, often even with the
terms of the law), are all based on the principle of fixed periods
of punishment, graduated into hundreds and thousands of possible
doses, and have regard far more to the crime than to the criminal.
On the other hand we have the positive system of punishment, based
on the principle of anunfixed segregationof the criminal,
which is a logical consequence of the theory that punishment ought
not to be the visitation of a crime by a retribution, but rather a
defence of society adapted to the danger personified by the
criminal. This principle of unfixed punishment is not new, but it is only
the positive theory which has given it system and life. The idea
of justice as assigning punishment to a crime, measured out by
days and weeks, is too much opposed to the principle of the
indeterminate sentence to allow it to receive any systematic trial
under the sway of the classical theories. There has been only an
isolated and exceptional use of it here and there, such as the
seclusion of mad criminals in special asylums, ``during her
Majesty's pleasure,'' in England. Nevertheless, personal freedom
(which is held to be violated by seclusion for unfixed periods) is
greatly respected by the English people. The fundamental principle of law is that of a restriction imposed
by the necessity of social existence. It is evident, therefore,
to begin with, that seclusion for an unfixed period, as for life,
is in no way irreconcilable with this principle of law, when
imposed by necessity. Thus it has been proposed, even by
the classical school, as a mode of compensation or adjustment. If, indeed, we admit an increase of punishment for a first
relapse, it is logical that this increase should be proportional
to the number of relapses, until we come to perpetual seclusion or
transportation, and even to death, as under the medi
Back to IndexNext