THE CRIMINAL CODE.

LETTER VIII.

The 17th article of the 7th section of ch. IL, which we are now considering, provides that "Where a woman shall have been delivered of a child, any person who shall by any secret disposition of the dead body of such child, whether such child died before, at, or after his birth, endeavour to conceal the birth of such child, shall incur the penalties of the tenth class." (See post.) This article shows an improvement in procedure upon the present law; which makes no provision for a trial of the prisoner for a temporary disposition of the body of a child, and which anomalously allows the finding a woman guilty of con mlment only, when indicted for murder. But I must express my deep regret that the Commissioners have wholly omitted to grapple with, and even to notice, the difficult question of infanticide by mothers; on which I must venture a. few suggestions. By the present English law,—tacitly preserved by the Commissioners in this respect, and so far conformable to the French and Prussian Codes,—the killing of a child by its mother is punishable simply as murder, i. e. with death. Of the actual extent of this crime no direct calculation can be made; the graver cases being included in the yearly Criminal Tables compiled by Mr. Redgrave under the general head of " Murder," whilst all the lighter ones lurk under the head "Con- cealment of Birth," (a crime, as Mr. Redgrave observes, " nearly allied" to in- fanticide); and the perusal of the commonest sources of information shows us numberless instances of Coroners' inquests on the bodies of infanta found concealed Or exposed, without the guilt (if any there were) being brought home to any in- dividual parties. But, even with the diminished criminality of the last two years, I believe it is on all hands admitted that infanticide is lamentably common. The strongest presumption therefore arises, that the law does not act as a check upon the crime—does not bear a due relation to it.

This is further shown by two facts—by the readiness of juries, on indictment for infanticide, to find concealment of birth; and by the horror which is excited throughout the length and breadth of the land when a Home Secretary demurs to the reprieve of a mother actually convicted of the greater crime. When we find thus the frequency of . an offence admitted—the individual instances of i constantly disgaised by juries' verdicts under another and a milder name—and the death-sentence for it, when actually passed, never executed—we obtain, I think, indications almost irresistible of a conflict between a harsh law and a lenient public feeling. Let us endeavour to analyze that feeling.

I do not wish to deny, in the first place, the existence of such a crime as actual child-murder, punishable as any other murder, and at least as abhorrent to every well-constituted mind: of which the recent cases of the parents who killed children for the sake of the fees to be obtained from their burial-clubs afford obvious instances. But in a vast number of cases we shall find one or two peculiar palliation of the crime, which I think sufficiently distinguish it from any ordinary murder,—those of want and shame.

let, Want. The child is legitimate or illegitimate, but the mother feels her- self in a state of starvation. She has no murderous enmity towards her child; she would make almost any sacrifice to maintain it. But she cannot bear to see it die inch by inch before her eyes; she cannot bear its cries for food; she has a vague terror of the cruelties of the workhouse system. Its immediate death seems to her a lesser evil for it than a protracted agony; its very cries seem to plead rather against life than for it. " It must go to heaven ! "—the vague thought flashes through her mind; and, after a struggle of days perhaps with the idea of its de- struction, the infant is flung over a bridge; the mother for the most part flin ' herself after it. Is it not evident that in such cases there is no malice towards the child in its mother's breast? that it is actually put to death from love and not from hatred? Is there the slightest resemblance between such an act and that of a Thurtell or a Greenacre ? What is there, but her own remorse, to pre- vent such a woman from becoming—ay, rather, from remaining—a useful mem- ber of society? And yet it is only by the plea of insanity—to be rendered still more difficult of application under the new Code—that she can be saved from the extreme penalties of the law I 2d, Shame. The child is illegitimate, adulterous perhaps. Its birth may have caused the mother to descend from a higher station in society—has ruined her prospects—has exposed her to scorn, ill-treatment, privation. The mother bears no malice to the child, except as the occasion, i the permanent memorial of all these evils. Take it from her, and she will not Feel the slightest wish to pur- sue and kill it. Restore to her all the advantages which she has lost by its birth, and she will love it as any other mother might. But that society which punishes her for having brought it forth, yet continues to lay (more or less) upon her the chief care and charge of its maintenance. That is to say, it intrusts the infant to the person of all others who fancies herself the most injured by its existence. If a man who believed himself aggrieved by another were compellable to take the supposed offender into his house, to provide for his wants, to tend him day and night, how many thousand times would the sense of injury rankle into murder, for once that it does now; and bow often does any man endure at the hands of another such a complete wreck of honour, fortune, hopes of every kind, as many a girl sustains, every day almost, by the birth of an illegitimate child? Of course I am here stating the case for the woman, and urging no more than a palliation of ber guilt. God forbid that I shouldjustify the reasoning which I have here exhibited as acting upon her mind I No doubt, it is a perversion of in- tellect which makes her consider the child as the injuring instead of the help- lessly injured party. But the whole weight of the blow which strikes mother and child falls upon the mother in the first instance, while the child is as yet un- conscious of it; years will elapse before he can reproach her with the insults cast upon hint on account of his birth. And indeed, the very prospect of such an event will for the most part only endanger the infant's life. The greater must be its future miseries, the greater is the temptation to spare them to him, while he is yet insensible to either present or coming evil. " Put it out of its misery 1 "—do we not say so of the wounded worm? Observe' that the feeling of shame as an incentive to infanticide must in general be stronger, the nicer the sense of honour in the woman herself, i. e. the more valuable she would otherwise be as a member of society. Scott's Effie Deans is an admirable psychological study of a case of this description. And the truth of the position is further confirmed by a remark of M. Fregier, in his great work Des Classes Dangereuses, that the most abandoned prostitutes are often affec- tionate mothers; that is, that where the feeling of shame is utterly obliterated, the temptation to infanticide often disappears. Between the two classes of cases which I have pointed out there is certainly a great difference. In the former case, the guilt of the woman is almost exclu- sively religious, arising from want of submission to God: she kills her child be- cause she is afraid of seeing it die by inches. In the latter class, the main im- pulse is wholly selfish, and the strength of the temptation affords the sole excuse. But where want and shame exist together—where the mother, driven to the last depths of misery and degradation by her fault, sees the child dying of starvation before her eyes—where, if a miracle could save its life, the only apparent prospect before it is that of a life of misery and degradation like her own—how overpower- ing must be that temptation I I venture to suggest, therefore, that infanticide, as distinguished from child- murder, should form an individual crime, punishable less severely than murder; distinguishing, moreover, by different degrees of punishment, the two classes above pointed out. At the same time, the killing of a child being once admitted to be wilful, the presumption must be against any palliation. The age of the child should also be limited,— perhaps higher in the case of infanticide from want than in that of infanticide from shame. So long as a child is utterly dependent upon its mother, the horror of seeing it die of starvation may to some extent ex- tenuate the guilt of destroying it. But every day added to the existence of an illegitimate child weakens the presumption of that overpowering sense of shams which we have admitted as a .palliation. From the moment that its existence is no longer wholly wrapped up in hers—that it becomes to her a distinct person endowed with dawning reason, instead of a mere senseless infant—the palliation seems destroyed. And, of course, such palliation could only be admitted with extreme difficulty in the event of a second illegitimate birth. A mitigated punishment for infanticide is adopted by the Austrian and Bava- rian Codes. By the Austrian Penal Code, article 122, mothers who during de- livery take away the infant's life, or allow it to perish by omitting to take the necessary precautions for thepreservation of its life, are punished with " very severe" imprisonment for life if it is a legitimate child—with "severe" imprison- ment for a period of from ten to twenty years if it is illegitimate and actually killed by the mother, and for a period of from five to ten years if allowed to die by the omission of necessary precautions. It seems, however, equally unphilo- sophical and immoral to consider all infanticides by the mother as inferior to murder.

By the Bavarian Penal Code, article 157, a mother who designedly destroys her new-born illegitimate child, capable of life, (" lebensfiihig," Fr. " viable,"—liveabk, if we might venture the neologism,) is to be sentenced to the house of correction for an indefinite period, subject to an aggravation of punishment in certain cases. For repeated infanticide, death is to be inflicted. A child is "new-born" until three days old. There are, moreover, a multitude of those minute distinctions of guilt and punishment, so familiar to the Bavarian Code, where the murderous intent, or the capacity of life in the child, or the violence exercised, are not clearly proved, or are merely presumable, &c. • It is very unfortunate that, in their general disregard of criminal statistics, the Commissioners should not have afforded us any data as to the relative effects of the severe or the mitigated law, in this country and abroad. It is, however, certain that the crime of child-murder, like any other relic of the old Draconian criminal law in England, while over-punished in theory is under-punished in fact. By means of the fiction of concealment of birth, the child slayer mostly escapes with less than six months' imprisonment! The Criminal Tables for England and Wales in 1845, which exhibit 32 convictions (out of 53 committals) for concealment of birth, show only 4 sentences to more than one year's inipriaon- ment, and 26 for six months and under. In 1843, when crime was more preva- lent, out of 45 sentences for the same offence, 88 were for six months and under.

With some each modification of the law as I have suggested, the necessity for such a fiction would be in a great measure obviated. And indeed, in the case of illegitimate infants born dead, or who may happen to die a natural death, the only harm which society appears to sustain is that of a statistical inaccuracy in the Registrar's reports of births and deaths; and it seems cruel to punish the mother solely for not revealing her. shame. The true rule would seem to be, to throw upon her The burden of proving that the child came naturally by its death. I omit here, for obvious reasons, the consideration of certain offences against the person, which embrace articles 18 to 29 of the present section. Article 30 enacts the penalties of the fourth class (see post) for the taking away, or detaining against her will, " from motives of lucre," heiresses and women of property, with intent to force a marriage. Article 31, a new provision, extends the pnneiple of the preceding article to the abduction generally of any woman against her will, to force a marriage; the penalties for which are those of the seventh class (see post). The same penalties attach, under article 32, to the un- lawfully taking away from the possession and against the will of her father, mother, or other person having the lawful care or charge of her, any unmarried girl under sixteen years of age, whether with or without her consent. This might seem the place for the insertion of those penalties which are loudly called for by the public voice against what is now the mere civil injury of adul- tery, and that more hideous offence which the late investigation of a presumed case of infanticide at Greenwich, and the case of Cooke v. Wetherell, have brought forcibly into notice. But for these, as offences sui generic, I trust the Commis- sioners reserve a future chapter; especially as they depart here from the arrange- ment of Peel's act of the 9th Geo. IV. c. 31, chiefly followed hitherto in this sec- tion, by omitting the analogous crime of bigamy. It is time that England should rid herself of the reproach of being the only country where the most irreparable of injuries to a husband's honour meets with nothing but a compensation in money ! Articles 33 and 34 enact the penalties of the sixth class for the taking away, decoying, or unlawfully harbouring, any child under the age of ten years, with the intent to deprive the parent, or other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child; with an exception iu favour of persons claiming in good faith to be the fathers of illegitimate children, or to have any right to the possession of such children. By article 35, the maliciously sending as prisoner, or transporting beyond seas, any subject of the realm, is visited with the penalties of the fourth class. By article 36, the arresting any clergyman on civil process whilst performing, or going to perform, or returning from the per- formance of Divine service, with the penalties of the ninth class. By article 37, persons guilty of any " unlawful restraint" of the personal liberty of any other person incur the penalties of the seventh class. By article 38, persons " mali- ciously or negligently" causing any bodily harm, or doing any violence to the per- son of another, incur those of the twelfth class. The including malicious and negligent injuries under the same penalty, in this instance, seems contrary to the true principles of penal law. Articles 39 and 40 apply the rules of justification to offences minor than homi- cide, and to the case of injuries inflicted by consent, where the party who inflicted the injury neither intended death to result nor believed that it would probably result from the act committed. Article 41 enacts that no person shall be " liable" for negligently causing any grievous or other bodily harm or violence, where if the party had been killed suds killing would not have amounted to negligent homi- cide. Article 42 inflicts the penalties of the thirteenth class for assaults, which are defined to be (article 43) " any attempt, offer, or menace by gestures, to cause any bodily harm or to do any violence to the person of another, by one who has the present ability to cause such bodily harm or to do such violence." Article 44 inflicts the penalties of the seventh class, in any case not before provided for, for any wholly abortive attempt by any assault or other act whatsoever to commit an offence punishable with the penalties of the sixth or any higher class; and for abortive attempts to commit offences of a lower degree, penalties not exceeding one half of those which would have been incurred by the actual perpetration of the offence.

The principle of the last-mentioned article, endeavouring as it does specifically to distinguish the mere attempt from the partly consummate offence by different degrees of punishment, is altogether commendable. But, in the first place, the words "by any assault or other act whatsoever," (which the law would probably construe as meaning " any other act ejusdem generic with that before specified,") seem to exclude the case of abortive attempts topoison, which I have before noticed And then, how is this halving of the penalty to be ap(plied to the penalties of the seventh, ninth, eleventh, twelfth, and thirteenth class, as after shown,) which consist of a specific period of imprisoment, or a fine at discretion, or both? A fine at discretion cannot, I presume, be halved; so that it would seem impracti- cable to make use of the pecuniary penalty in any such case without letting in a host of perhaps unsolvable pleaders' objections; and on the other hand, as it could not be proved that both penalties would have been inflicted for the consummate offence, the halving would probably apply in all cases to the solepenalty available, e.. imprisonment. So that when a man endeavouring to strike another, and grazing his skin, might be subject to a definite period of imprisonment, and to a heavy fine, he would only be subject to half the period of imprisonment alone, if the party aimed at should escape the blow. I notice this merely to show the diffi- cult construction of the article in question.

Articles 45 to 47 provide for the lighting of an injury upon another person than the one intended; for acts done with a general intent to injure (as, for example, the firing a pistol into a crowd); and for an intended injury taking effect in a different manner from that designed by the perpetrator; in all which cases, the penalty is justly enacted to be the same as it the injury had taken place in the intended manner upon a determinate or upon the determinate person. Chapter 111, Definitions of Terms and Explanations—to be greatly enlarged, the Commissioners tell us—need only be referred to. Of the chapter of Penal- ties, which is equally temporary, I will quote the scale. First class. Hanging by the neck until death. In cases of murder, the offend er's body to be buried within the precincts of the prison. Second class. Transportation for life or for not less than seven years. Third class. Transportation for life or for not less than seven years, or im- prisonment for not more than three years nor less than one. Fourth class. Transportation for life or for not less than seven years, or im- prisonment for not more than three.

Fifth class. Transportation for not more than ten nor less than seven years, or imprisonment for not more than three.

Sixth class. Transportation for seven years, or imprisonment for not more than three.

Seventh class. Imprisonment for not more than three years, or fine at discre- tion, or both.

Eighth class. Imprisonment for not more than three years. Ninth class. Imprisonment for not more than two years, or fine at discretion, or both.

Tenth class. Imprisonment for not more than two years. Eleventh class. Imprisonment for not more than eighteen months, or fine at discretion, or both.

Twelfth class. Imprisonment for not more than one year, or fine at discretion, or both.

Thirteenth class. Imprisonment for not more than six months, or fine at dis- cretion, or both.