5574. MURDER, Child.—
By the stat. 21.
Jac. 1. c. 27. and Act. Ass. 1170. c. 12. concealment
by the mother of the death of a bastard
child is made murder. In justification of this,
it is said, that shame is a feeling which operates
so strongly on the mind, as frequently to induce
the mother of such a child to murder it, in order
to conceal her disgrace. The act of concealment,
therefore, proves she was influenced by
shame, and that influence produces a presumption
that she murdered the child. The effect
of this law, then is, to make what, in its nature,
is only presumptive evidence of a murder conclusive
of that fact. To this I answer, 1.
So many children die before or soon after birth,
that to presume all those murdered who are
found dead, is a presumption which will lead, us
oftener wrong than right, and consequently
would shed more blood than it would save. 2.
If the child were born dead, the mother would
naturally choose rather to conceal it, in hopes
of still keeping a good character in the neighborhood.
So that the act of concealment is
far from proving the guilt of murder on the
mother. 3. If shame be a powerful affection of
the mind, is not parental love also? Is it not
the strongest affection known? Is it not greater
even than that of self-preservation? While we
draw presumptions from shame, one affection
of the mind, against the life of the prisoner,
should we not give some weight to presumptions
from parental love, an affection at least
as strong, in favor of life? If concealment of
the fact is a presumptive evidence of murder,
so strong as to overbalance all other evidence
that may possibly be produced to take away the
presumption, why not trust the force of this
incontestable presumption to the jury, who are
in a regular course, to hear presumptive, as well
as positive testimony? If the presumption
arising from the act of concealment, may be
destroyed by proof, positive or circumstantial,
to the contrary, why should the legislature
preclude that contrary proof? Objection. The
crime is difficult to prove, being usually committed
in secret. Answer. But circumstantial
proof will do; for example, marks of violence,
the behavior, countenance, &c., of the
prisoner, &c. And if conclusive proof be difficult
to be obtained, shall we, therefore, fasten
irremovably upon equivocal proof? Can we
change the nature of what is contestable, and
make it incontestable? Can we make that conclusive
which God and nature have made inconclusive?
Solon made no law against parricide,
supposing it impossible that any one could
be guilty of it; and the Persians from the same
opinion, adjudged all who killed their reputed
parents to be bastards; and although parental
be yet stronger than filial affection, we admit
saticide proved on the most equivocal testimony,
whilst they rejected all proof of an act certainly
not more repugnant to nature, as of a thing impossible,
unprovable.—
Note to Crimes Bili. Washington ed. i, 149.
Ford ed., ii, 206.
(1778)
