CRIMINAL INJUSTICE.
THE state of the criminal law is a perpetual puzzle to all who are concerned in it, and not infrequently draws scandal upon the admini- stration of " justice." Every term or assize furnishes instances so repeated that the mind gets used to the anomaly, and passes it by unless attention be specially awakened. In this way we had over- looked, till a correspondent pointed out to us, the case of MARY GALLOP, tried lately at the Chester Assizes for poisoning her father. MARY was courted by a young man, of whom her father disapproved ; and because the father prevented her from meeting her sweetheart, she killed him. At the trial, her counsel tried to get up a very common plea in defence—that she was insane. The evidence of overt insanity was not at all conclusive ; though it was distinctly proved that her mother was not only deranged but ac- tually was so while pregnant with the girl. The Judge, Mr. Baron GURNEY, did more than caution the Jury against being unduly swayed by a plea not substantiated in evidence. THE state of the criminal law is a perpetual puzzle to all who are concerned in it, and not infrequently draws scandal upon the admini- stration of " justice." Every term or assize furnishes instances so repeated that the mind gets used to the anomaly, and passes it by unless attention be specially awakened. In this way we had over- looked, till a correspondent pointed out to us, the case of MARY GALLOP, tried lately at the Chester Assizes for poisoning her father. MARY was courted by a young man, of whom her father disapproved ; and because the father prevented her from meeting her sweetheart, she killed him. At the trial, her counsel tried to get up a very common plea in defence—that she was insane. The evidence of overt insanity was not at all conclusive ; though it was distinctly proved that her mother was not only deranged but ac- tually was so while pregnant with the girl. The Judge, Mr. Baron GURNEY, did more than caution the Jury against being unduly swayed by a plea not substantiated in evidence. " It had been suggested," be said, according to the report of the Times, a that the prisoner was not responsible for her actions because her mother was insane. But of that there was no evidence. That was a dangerous defence, except it was properly made out; and, in his opinion, it had been a great deal too much resorted to for the public security in heavy cases of late years."
Our correspondent subjoins some merited strictures.
" The words of that there was no evidence,' must, I presume, be taken to apply to the state of the prisoner's mind—not to the insanity of her mother, tahtch was distinctly shown. The learned Judge, then, is to be understood as Aging to be Jag, that in his opinion there was no evidence of the prisoner's being in that state of mind which would remove from her the responsibility of her actions. But what does the learned Judge go on to dot—Why, to warn the Jury against this very ground of defence, when it is not properly made out,' as perilous to society ; to express his opinion that the public security' is risked by resorting to tt ; and thus to lead them to consider the evidence of insanity in this case, be there much or little, with prejudice; to bias them to decide one way, by actually urging them with the thought of the extraneous evils which might follow from an opposite decision. ' That is a dangerous de- fence '—dangerous to society. ' Look on it, therefore, with suspicion ; much evil may be done by your attending too much to it—much evil has been done by it already; I warn you against it, for the sake of the public security.' This is the meaning expressed by the learned Judge in judicial language. " The Jury, after this warning, found the prisoner guilty of the horrid crime with which she was charged ; but recommended her to mercy. Upon which Mr. Baron Gurney made the remark—' What 1 recommend to mercy a person who has poisoned her own father ?' He then proceeded to sentence, without hope of mercy, the miserable prisoner. The learned Judge's remark is natural enough : but its very obviousness might have suggested the propriety of asking the Jury the meaning of their recommendation. They might have had no- thing to say ; they might have tacitly allowed that they bad merely yielded to the wish of saving from the horrid and extreme penalty of death even the worst of criminals. But might they not also, perhaps, have answered to this effect, had the opportunity been given them—' We are satisfied that the pri- soner committed the act ; we are not satisfied that she is insane in the sense which would make her irresponsible for her actions; and therefore we find her guilty. But we think that some of the facts which have appeared—her mo- ther's derangement at the time of her pregnancy with the prisoner, as well as subsequently—the mother's frequent attempts at self-destruction, and ulti- mate suicide—and the partial symptoms which have been noticed of similar disorder of intellect on the part of the prisoner herself—that these facts raise a question whether her state of mind be not such as not to annihilate altoge- ther but greatly to diminish the control over her actions which is essential to responsibility. We wish this to be inquired into and ascertained; and, if there be a partial disorder of mind, though it may not amount to that utter insanity which the law requires as a ground of absolute acquittal—an incapa- city to distinguish right from wrong—we yet think that justice may be satis- fied without the exaction of the extreme penalty.' " Would a recommendation to mercy based on such grounds be utterly irrational ? To me it appears more rational every way, more in accordance with justice as well as with mercy, with the common sense and common feelings of mankind, than the rules which our Judges seem disposed to enforce,—that a man is either insane altogether, or not insane at all; that he is therefore either absolutely innocent, or to the full extent guilty. The former of these supposi- tions is notoriously untrue. That the latter is equally and obviously un- founded, I should have said with no less confidence—had I not known how many dicta of judicial wisdom I was thereby contradicting." Here both Judge and Jury seem to be the unconscious victims of a natural reaction of mind. When MACNAGHTEN, the assassin of Mr. DRUMMOND, was let off upon the well-substantiated plea of insanity, and a similar defence brought impunity to the assassins who attempted or pretended to attempt the life of the Queen, sym- pathy for those who incurred the danger provoked excessive alarm and indignation at so comprehensive and constructive a plea. Mad- doctors became objects of suspicion ; and a lunatic escaped from Hanwell and tried for a crime would have had the onus probandi very rigidly enforced upon him. Mr. Baron GURNEY seems to have sustained so severe a shock to his sense of justice, at that time, that he has not recovered it yet. He is obviously incapable of con• sidering the plea with an unprejudiced and equal mind for what it is worth : he begins by assuming that it is bad and dangerous—the very name of it excites in him odium and alarm ; odium and alarm being the very worst starting-points for judicial rumination.
The Jury are under a different influence. They learn from the Judge that they must not lightly entertain the plea of insanity— that they must lean against it : but they remember that the law is not merely correctional—that it is vindictive ; they mistrust their own insight into the motives of a miserable ignorant wretch whose parent was mad, and whose insanity is likely enough to have been awakened by thwarted passions ; and thus, acting under the order of the Judge, and yet repenting that they must do so, they first condemn the prisoner and then strive to retract the condemnation.
We shall continue to see this playing fast and loose with law, this contest between cruel rigour and mischievous laxity, so long as our law aims, not at compelling good conduct, but at revenging past misdeeds—so long as it is incapable of accommodating its means to the end. The plea of insanity is only one form of asserting a mo- dified responsibility. All criminals are insane, lacking that "mens sans in corpore sano" that constitutes sanity. The untaught dolt is as insane as the madman ; and to wreak on his uninformed tene. ment of clay the revenge of " justice," is neither humane nor edi- fying. Juries are learning to doubt the wisdom of that coarse kind of discipline ; and they every now and then virtually repeal a law in special cases, without having any power to enact another in its place. They feel that it is not retribution for the past which most wholesomely impresses the criminally-disposed, but frustration of criminal stratagems and compulsory observance of law. Were our criminal discipline such that the convict should be ever treated with mercy, but detained until he showed trustworthy symptoms of amendment, and then exhibited in his own person and conduct that a man who goes at large in society must observe the law, will he nill he, his disorderly compeers would be more forcibly im- pressed with the irresistible power of the law, mercy would be less outraged, and juries would be less averse from turning over a cri- minal to the discretion of judge and gaoler.
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