LEGISLATION BY JURIES.
JOHN OVENSTONE, who shot his creditor Crawley, has been ac- quitted on the ground of insanity; and the verdict of the Jury is called in question as an outrage on sense and justice. The issue cannot be understood without reviewing the facts of the case; and we borrow the summary given by a contemporary who is hostile to the verdict- " Ovenstone appears to have sustained for twenty years and upwards an irre- proachable character. He was considered amongst his friends and acquaintances a very pattern of charity and benevolence, and many instances of these qualities were quoted by the witnesses at the Central Criminal Court. Since the year 1844 be had been unfortunate in pecuniary transactions. Within the current year be had lost in debts, from intimate friends, more than 2,0001., independently of the transaction that led to his collision with Mr. Crawley. About this time last year, Ovenstone was appointed joint assignee with a Mr. Cromer in the affairs of a bankrupt named Bond. He himself lost 6001. by the bankruptcy, a large sum by the sale of the furniture, and became responsible to the extent of 500/. as assignee. Of this sum 1501, was due to Mr. Crawley for goods supplied to Bond on the authority of his assignees. As Mr. Crawley did not receive his money within the time agreed on, he brought an action against the prisoner; and the result was an execution put into the prisoner's house, on Saturday the 14th of August, under a judge's order. On the afternoon of that day, Ovenstone called upon Mr. Crawley at his counting-house, and shot him in the jaw with a pistol. Immediately afterwards, he put a second pistol to his own mouth, and discharged it, but without causing death. He was found by a policeman in Mr. Crawley's counting-house, leaning his head upon his hands, and bleeding at the mouth."
At the trial, Dr. Conolly, whose experience in the treatment of the insane is well known, said—" The prisoner was not in a sound state of mind at the time he made the attack on Mr. Crawley. . . . He was not unconscious of what he did, but he was act- ing under an impulse that he could not control." The same plea, it is objected, might be advanced to excuse any ruffianism ; and the very passion which it is the object of the law to control may be urged in bar of the legal penalty. The question turns on this point; and the dicta of Judges are brought forward. "I cannot allow the protection of insanity," said Lord Erskine, in Hatfield's case, "to a man who only exhibits violent passions and malig- nant resentments, acting upon real circumstances." And in APNaghten's case the Judges made a distinction even in the pro- tection allowed to a prisoner of undoubted insanity : if his delu- sion, they said, were, that another threatened his life, and he slew that other in self-defence, he should be acquitted ; but if his de- lusion were that he had been injured in character or fortune, and he killed in revenge, he would be liable to punishment. In
M‘Naghten's case, however, the Jury acquitted the prisoner, in spite of the Judges' dictum ; and now they have acquitted Oven- stone, against Lord Erskine's dictum. "If he be acquitted4asks the Times, "how is it Anne Hunt is left for execution?"• In spite of that threatful interrogatory, however, the Jury may be excused. Ovenstone was enervated by declining fortunes, made morbidly irritable by the perversity of his ill luck. The final visitation, a kind of penal liability incurred by the fact that he was acting in the service of the creditors, was, we all must feel, "more than flesh and blood could bear." No doubt, he was culpable—criminal; but still there is probably not a man in the country—not even the writer of the strictures to which we allude —who, left to his own individual reflection and conscience, would have ordered Ovenstone to undergo the direct consequences of his legal guilt. It was evidently a case for mercy, in some form and degree—it was not a case in which a merciful consideration could at any stage be excluded ; and the Jury naturally felt that they could not begin to judge the case in a merciless spirit.
The instance, however, is only one among many, of the diffi- culties put upon ministers of justice by the nature of the retribu- tive penalty, which takes no account of the culprit's mind—pays no regard to the possibilities of the future, in this world or in the unknown world whither human law ventures to dismiss a fellow creature—and is in practice so little efficacious. It is true that all criminal acts are evidence of some diseased and really " un- controllable " impulse—for that impulse which results in acts is as uncontrollable as the absence of any stronger motive can make it. The object of penal discipline is to supply counteracting motives, either in the particular criminal or in others by example : but that mere terrorism fails to do, simply because in an ignorant, a mor- bid, or a ferociously excited mind, terrorism is not antagonistic to the destructive passion ; often it positively suggests the criminal act ; always, we suspect, it increases the temporary insanity of mental excitement. It is a growing though"still a dim sense of these facts which makes juries palter with the set penalties of our criminal law. They feel that a criminal is in a diseased and dangerous state—that he is not fit to be loose in society—that he must be seized and secluded, made safe if possible, and at all events confined until he can be so ; and they feel that the ex- ample of that subjection to an irresistible and inevitable purga- tory of corrective discipline, is likely to be more efficacious, because more passionless and reasoning, than any vindictive penalty. By a circuitous and cumbersome process, the Jury in Ovenstone 's case have blundered into the practice of which we have frequently stated the theory.
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