HC Deb 14 May 1873 vol 215 cc1981-7

Order for Second Reading read.

MR. CHARLEY,

in moving "That the Bill be now read a second time," said, its object was to provide a remedy against the crime of infanticide by creating a new offence midway between murder and manslaughter on the one hand, and concealment of birth on the other. The murder of newly-born infants, like the murder of adults, was punishable by death; but juries in these days were as reluctant to pronounce a verdict of wilful murder in a case of infanticide as juries were formerly to pronounce a verdict of guilty against persons accused of the then capital offence of sheep stealing. It appeared from Mr. Neilson Hancock's "Judicial Statistics" for 1872, that in Ireland the number of infanticides committed annually was about 27 times the number of other murders committed annually in that country; and that in England the proportion of infanticides to other murders was about 66 to 1. Lord Sydney Godolphin Osborne, in giving evidence before the Capital Punishment Commission, said that "In nine cases out of ten a trial for infanticide was only a cruel farce," in consequence of the reluctance of juries to pronounce a verdict of wilful murder in such cases. The law itself threw many difficulties in the way of a conviction by enabling the jury to find a verdict of concealment of birth on an indictment for murder, and by requiring proof that the child was completely born alive at the time it was destroyed. If the crime was made punishable in a manner more in accordance with public sentiment, convictions would be more frequently obtained. It was important at the same time that the Legislature should show that the life of an infant was as precious in its eyes as the life of a person of maturer years, and therefore the Bill did not interfere with the law of capital punishment, but it gave the alternative of proceeding for murder or for the new offence created by this Bill, which was founded upon the recommendations of the Commission which reported in 1866 on the subject of Capital Punishment. That Commission were of opinion that an Act should be passed making it impossible for a jury to find a verdict of concealment on an indictment for murder, and declaring it to be an offence punishable by penal servitude or imprisonment, at the discretion of the Court, to inflict malicious injuries upon an infant during its birth or within seven days afterwards. The House of Lords passed a Bill "for giving protection to new-born children," in 1866, which had been followed to some extent in framing this Bill. There were very eminent authorities in favour of a course being taken similar to that proposed by the Bill. For instance, Mr. Avory, clerk of arraigns at the Central Criminal Court, in his evidence before the Commission of 1866, said, there was a growing disposition not to convict of murder for killing new-born children, and when convictions did take place, not to carry the sentence into effect. Mr. Baron Martin was of opinion that some punishment short of death should be inflicted. Mr. Justice Willes also gave evidence as to the the difficulty of proving the offence, and said that there should be a distinct Act of Parliament to meet the case, by analogy to the principle of the Treason Felony Act. Mr. Walpole also was of opinion that infanticide should form a distinct offence, and not be treated as murder, and Lord Cranworth expressed. a similar opinion. Lord Wensleydale, Mr. Serjeant Parry, Mr. Fitzjames Stephen, and the Lord Chief Baron were in favour of a similar change in the law, Lord Wensleydale observing that concealment of birth should be more severely punished than was now the case. The Bill had been brought forward under the auspices of the Infant Life Protection Society, and he hoped that there being so overwhelming a weight of authority in favour of its principles, the Government would see their way clearly to support the second reading of the Bill. That Bill was, in all probability, the last which he should have the privilege of bringing before the House on behalf of that society; for their efforts in future would be directed less to legislation, and more to utilizing the legislation which had happily already been obtained. The present Parliament, if it passed this Bill, would have the satisfaction of knowing that it had availed itself of every opportunity of affirming the sacredness and strengthening the securities for the protection of infant life.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Charley.)

MR. BRUCE

admitted the lamentable prevalence of infanticide, and that juries too often returned verdicts not in accordance with the facts, in order to avoid convicting for murder. At the same time, the question of infanticide was only part of a very much larger question which had formed the subject of inquiry by a Royal Commission. He saw on the opposite bench two Members of that Commission (Mr. G. Hardy and Mr. Hunt) who, no doubt, must have felt the great importance and difficulty of the whole subject, or they would have availed themselves of the opportunities they had when in office to introduce a measure dealing with it. The evils which were now to be deplored in this country, arising from the frequency of infanticide, were so great that he should be sorry to throw obstacles in the way of the Bill, if it were not that the Government were themselves prepared to deal with the whole subject. Indeed, in answer to a Question, he had already stated that the Government had prepared a Bill. But the hon. and learned Member for Salford (Mr. Charley) must know that infanticide was not the only case in which juries returned verdicts in evasion of the law; and all these cases must be considered together. It was true that the Government had not introduced their measure, for they had learned by experience, that the best way to obstruct legislation was to attempt to do too much at one time. The passing of that Bill, therefore, or even its introduction that Session, would depend upon the progress made with the other business before the House. As to the measure under consideration, it was proposed by the 3rd clause to make all child murder at or immediately after birth a felony punishable only by a maximum sentence of 10 years' penal servitude. Such a provision would apply in cases where an inconvenient heir of an estate was made away with; it would apply not only to the mother but to other persons aiding her, and it might thus extend to crimes which ought not to be placed in the same category with murders committed by the mother at the moment of birth, when she might be pressed by hunger or despair. During the last 20 years there had been no instance in which a mother had been executed for infanticide. At the same time it would be most rash and dangerous to say that that which might not amount to murder in a mother, or in most cases, was not murder in any case. The whole subject must be before the House before a proper decision could be come to; and it was for this reason, without questioning the propriety of the legislation proposed by the hon. and learned Gentleman, that he asked him to withdraw the Bill and leave the subject in the hands of the Government.

MR. HOLKER

said, the subject under consideration was very simple, and did not demand any great degree of carefulness on the part of hon. Members. Considerable experience led him to the conclusion that the criminal law as to infanticide was highly unsatisfactory and required amendment. In fact, he did not remember a case in which a woman indicted for the crime of child murder had been convicted when the murder was committed at the time of birth or soon afterwards. In order to make out the offence, it was necessary to prove that a child was born alive and that an independent circulation had begun in the child's system. In 99 cases out of 100, however, medical men were unable to state with any degree of positiveness that the child had been born with a complete circulation; and then, though you might have the clearest proof of the mother's intention to take life, a loophole of escape was afforded to the jury, of which they availed themselves in order to avoid returning a verdict of wilful murder. Again, the fact seldom warranted a conviction for concealment of birth, because, in order to make out that offence, it must be shown that there had been an attempt to dispose secretly of the body, and thus the mother escaped punishment altogether. If this Bill passed, it would not, in heinous offences, prevent any woman from being indicted for the capital crime along with anybody who aided and abetted her, while it would insure punishment in more common cases where punishment was deserved. Believing that the Bill was a useful though an unambitious amendment of the law, he should support the second reading.

MR. GATHORNE HARDY,

as a Member of the Royal Commission which had inquired into the law of murder, did not recede from the view that the law respecting infanticide was in a most unsatisfactory condition, and he thought the House might safely affirm the principle contained in the Preamble of the Bill—that it was expedient to amend the law on that subject. He might mention that when the Government of which he was a Member were in Office, his right hon. Friend (Mr. Walpole) had brought in a Bill on this subject, but through a multiplicity of business it was not pressed; and he would remind the right hon. Gentleman the Home Secretary that the Government of that day were not allowed much time to carry that or any of their measures. The difficulties connected with the law of murder were greater than those relating to infanticide. It was quite clear, however, that the Bill as it stood would require much amendment. For example, it would apply to the whole world the punishment which should only apply to the mother under the peculiar circumstances in which she was often placed, and even the mother might destroy the life of her child for other reasons than those stated. Of course, you might still prefer a charge of murder; but if the Bill passed an indictment for murder would hardly ever be resorted to. Since the passing of the statute creating the offence of treason-felony, indictments for treason had been, and would be, very infrequent. It was found that there was a greater certainty of conviction upon the minor offence; and here also, though you reserved the power of trial upon the capital offence for murder committed at birth, pleaders would never in practice recommend an indictment for murder under such circumstances, unless the offence were of a very atrocious character indeed, and such as to ensure conviction. At present there was, as his hon. and learned Friend the Member for Salford (Mr. Charley) had pointed out, great difficulty in proving the birth of a living child, and a mother could not even be convicted for concealment of birth unless there was a secret disposal of the body. Even then, upon conviction for concealment of birth, the punishment was almost a nominal one, so that the mother obtained practical immunity for a great crime. He rejoiced that the Government had taken up the whole subject, and suggested that, meanwhile, the right hon. Gentleman should at least bring forward a Bill to amend the law respecting infanticide, because upon that question he believed there would be no difference of opinion in the House. Upon that understanding, he would recommend his hon. and learned Friend to withdraw the Bill after its principle had been affirmed by the House.

SIR GEORGE GREY

said, no one could feel more deeply than he did the anomaly of the existing law and the expediency of altering it; but after the statement made by the right hon. Gentleman the Home Secretary, it would be better to leave the subject in the hands of the Government. He would suggest to his right hon. Friend that the Government measure might be properly introduced in the other House of Parliament; for as the Bill had been prepared, Parliament ought not to lose a chance of passing it even in the present Session, and there were Members of the other House eminently qualified to deal with it. There was another point to which he would direct attention. By the law as it stood, the Judge was compelled in cases of murder to pass sentence of death in open Court; but after sentence passed in this way on women for child murder the Judge almost always wrote to the Secretary of State recommending a mitigation of the punishment. There were also various degrees of murder in some of which the Judge felt that it was not expedient that the sentence he passed should actually be inflicted. The Secretary of State invariably acted upon the recommendation of the Judge, though he appeared to the public to be setting aside his decision. It was clearly better to adhere to the sentence passed in open Court; and this sentence should, as far possible, be made conformable with the actual punishment inflicted.

SIR GEORGE JENKINSON

joined in the recommendation addressed to the hon. and learned Gentleman (Mr. Charley) to leave the subject in the hands of the Government, who would be responsible for legislation.

MR. HUNT

agreed that the Bill which the right hon. Gentleman the Home Secretary said was ready might with advantage be introduced into the other House of Parliament. He also thought that if the House of Commons were in favour of the principle of the Bill now under consideration, there was no reason why it should not pass the second reading, and by thus affirming its principle give a certain stimulus to the Government. Everyone who had spoken had agreed that some amendment of the law was required, and he hoped, therefore, that the Government would allow the Bill to be read a second time. If so, he understood the hon. and learned Gentleman (Mr. Charley) would be willing to withdraw the measure.

THE ATTORNEY GENERAL

said, if the House desired to pass the second reading, there would be no objection on the part of the Government on the understanding just mentioned; but they could not pledge themselves to many of its provisions. As to the Government measure, its general principle might be gathered from a Bill brought in last year by the right hon. Gentleman the Recorder of London. That was a largo measure, dealing with the whole subject of the law of homicide, and incidentally with that of infanticide.

Motion agreed to.

Bill read a second time, and committed for Friday 13th June.