HC Deb 12 May 1875 vol 224 cc531-8

Order for Second Reading read.

MR. CHARLEY

, in moving that the Bill be now read a second time, said, that among the social questions pressing for a solution there were few of more importance than the question of amending the law relating to Infanticide. That was the third occasion on which he had brought the subject under the consideration of Parliament. An allegation was made last Session in "another place" that the Bill would have a tendency to diminish the security of infant life; but, on the contrary, its tendency would be to increase the security of infant life. That the Bill had been introduced on behalf of the Infant Life Protection Society ought in itself to be a sufficient answer to so absurd a charge. The new offence created by the measure, which stood midway between murder and concealment of birth, occupied, as Mr. Justice Willes stated in his evidence before the Capital Punishment Commission in 1866, the same relation to murder that treason-felony occupied to treason. The 6th clause was copied from the Treason-Felony Act. Would anybody assert that the Treason-Felony Act had lessened the securities of the Crown against High Treason? On the contrary, it had strengthened those securities by ensuring convictions at the hands of juries, who would have acquitted the prisoner, if proceeded against for the capital offence. If juries were reluctant to expose a traitor to the death penalty, was it surprising that juries hesitated to find a verdict of guilty of wilful murder against the mother of an illegitimate child, in whose breast the instincts of a mother's love had been stifled by her dread of the scorn of a cruel world, and especially of the virtuous of her own sex? So far from blaming juries for invariably acquitting the mother, they would be less than men, if they did not do it. The 3rd, 4th, and 5th clauses of the Bill were founded on the recommendations of the Capital Punishment Commissioners of 1866, who, in their Report, said— Our attention has been called to the frequent failures of justice in eases of Infanticide. The crime of Infanticide, as distinguished from murder in general, is not known to the English law. The moment a child is born alive it is as much under the protection of the law as an adult. We have considered whether the failure of justice which undoubtedly often occurs in such cases may not be obviated by some change in the law which shall add to the protection of new-born children. The principal obstacle, which now prevents the due enforcement of the law, is the extreme difficulty of giving positive proof that the child, alleged to have been murdered, was completely born alive. We have given this important and difficult subject our serious attention and we have arrived at the opinion, that an Act should be passed, making it an offence, punishable with penal servitude or imprisonment, at the discretion of the Court, unlawfully and maliciously to inflict grievous bodily harm or serious injury upon a child during its birth or within seven days afterwards, in case such child has subsequently died. No proof that the child was completely born alive should be required. With respect to the offence of concealment of birth, we think that no person should be liable to be convicted of such offence upon an indictment for murder, but should be tried upon a separate indictment. The accused should not be entitled to be acquitted in either of the above cases, if it should be proved on the trial that the offence amounted to murder or manslaughter. In the composition of that Commission he saw the names of four Members of the present Cabinet—the Duke of Richmond, the Earl of Derby, Mr. Gathorne Hardy, and Mr. Ward Hunt. Their Report was founded on the evidence of distinguished Judges who were examined before them. Of those Judges he might mention the names of Lord Cranworth, Mr. Baron Martin, Lord Wensleydale, Mr. Justice Willes, and the Lord Chief Baron, Sir FitzRoy Kelly. The late Mr. Justice Willes, in his evidence, said— I think that the present law certainly is in a very bad state. I think that a great many children meet with foul play under circumstances in which no sentence or adequate sentence can be passed upon the mother. I am obliged to come to the conclusion that a great many women kill their children in the course of birth, or soon afterwards, with a view to conceal the fact that they have had them, and they get off now altogether in cases whore it appears that there has been no concealment of the dead body, so as to be a misdemeanor. The Chairman, the Duke of Richmond, said— I do not understand you to propose any alteration in the law as it at present stands, to meet those difficulties which you yourself have mentioned?—I think that there ought to be an alteration in the law. I should propose a separate Act of Parliament upon the principle of the Treason Felony Act. Mr. EWART: An Infanticide Act?—I would take away all the anomaly which belongs to the case at present. I do not think that the acts against procuring miscarriage meet the point; it is not a case of abortion, it is the case of a full-grown child; it is not to produce a birth before the natural time. I think that you must have a distinct Act of Parliament; it would be nothing new in principle. Sir Samuel Martin, in his evidence, said— There is certainly one case of murder, which is probably the most common case which occurs, and that is child murder; I would certainly suggest that an alteration be made in the law with respect to the child being completely born. …… Any Judge who pleases can at once get an acquittal for a murder of that sort. It is almost impossible to tell whether the wound was given before the child was separated from the mother or afterwards; there are no means of getting at it, and if you suggest to the counsel for the prosecution, 'Have you any means of showing that this wound was inflicted after the child was separated from the mother,' the counsel says 'No,' and there is an end of it; that is not a very satisfactory state of the law. Mr. HARDY: You think that there should be some intermediate offence between murder and concealment of birth?—Yes. Mr. HUNT: Making it immaterial whether the child was completely born or not?—Yes; I think that some punishment short of death should be provided for that offence. Mr. ATTORNEY GENERAL FOR IRELAND: Do you mean for infanticide generally, or for infanticide in the act of birth?—In the act of birth; an infant is found just as it is born with some wound, and no one can doubt that it was inflicted by the mother, but cannot tell whether it was inflicted before or after its complete separation from her. When he (Mr. Charley) first introduced a Bill to amend the law on the subject, in 1873, it was read a second time; and when he introduced it the second time, in 1874, it was read a second time and referred to the Select Committee on the Homicide Law Amendment Bill of the Recorder of London, by which Committee it was amended in a manner of which he (Mr. Charley) disapproved. The Bill went up to the House of Lords, where it was read a second time; but it was subsequently thrown out on the Motion for going into Committee—the Bill that was thrown out, he would observe, not being his Bill, but the Bill which the Select Committee had made it. The principle of his Bill was supported by Mr. Justice Blackburn, in his evidence before the Homicide Committee. The Bill proposed to give power to treat infanticide as a simple felony, punishable with penal servitude or imprisonment, instead of as at present compelling prosecutors to proceed against mothers who destroyed their new-born offspring for the capital offence. He did not propose to make any alterations in the existing law; but simply to create a new offence and give an alternative mode of procedure. The Bill did not deal with the question of murder. Dr. Neilson Hancock, in his Judicial Statistics, 1873, p. 23, observed— The statistics of infanticide in England and Ireland are quite startling. The proportion of children in Ireland to the rest of the population was ascertained by the Census Commissioners in 1861 to be as 2.4 to 97.6, or, in other words, that in every 200 of the population about five are infants under one year of ago. It follows from this that the proportional number of infants under one year of ago which would correspond to the 23 murders which appear from the Coroner's returns to have taken place amongst the rest of the population in Ireland would be about 0.6 a-year, or 6 in 10 years. The actual number of infanticides is therefore 28 times the number of murders occurring amongst the same amount of the population at other periods of life. In England and Wales the actual number would appear to be on an average 50 times the number occurring amongst the same number of the population at other periods of life. In Ireland 106 persons were committed for trial for infanticide. So strongly, however, does the feeling against capital punishment operate, that there was not a single conviction for murder, and 39 were acquitted. If the punishment were more in accordance with public opinion, the prosecutions and convictions would be more frequent, and the excessive number of infanticides would be more effectually checked.

The question had now been in abeyance for nine years; the mind of the public was now completely seized of the subject; and he hoped, in consideration of its great importance and urgency, the House would consent to the Bill being now read a second time.

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

MR. MORGAN LLOYD

thought the Bill ought not to be read a second time without some discussion, and expressed his objection to the principle of the Bill, which proposed to make, what in another person was wilful murder, a simple felony punishable by 10 years penal servitude when committed by a mother upon her own child. The Bill defined an offence which amounted to murder, and proposed to enact that it should not be murder but a minor offence. As the Bill was framed, a jury, in order to convict of the new offence, must find that the mother "wilfully and maliciously inflicted bodily injury causing the death" of the infant—or, in other words, they must find that she had committed wilful murder. He would suggest the omission of the words "thereby causing death," which would remove the objection.

MR. CHARLEY

explained that his Bill did not touch the law relating to murder, but gave the prosecutor the choice of proceeding for murder or for the new offence created by the Bill.

MR. MORGAN LLOYD

said, if the Bill of the hon. and learned Member passed, juries must either find the prisoner indicted under the 3rd clause, guilty of felony, which would subject her to penal servitude for 10 years, or acquit her altogether; and as a consequence of the latter, she could not be indicted a second time if further evidence were obtained to support a charge of murder or manslaughter. He hoped it would not go forth that by British legislation that which would be murder in any other woman would not be considered murder in a mother. He trusted that his hon. and learned Friend, if the Bill be now read a second time, would bear his suggestions for its amendment in mind.

SIR EARDLEY WILMOT

said, that amongst all the reforms which had taken place in the criminal law, no attempt had been made to deal with this important matter, which circumstance showed the difficulty of dealing with it. The Bill did not alter the definition of murder, but made the crime with which it dealt different from what it had been up to the present time. For himself, he considered the life of an infant of as great importance to the State as that of any grown person. Much had been done by Lord Romilly and other distinguished men to bring about a reform of the law in relation to capital punishment, which was now only mercifully retained in few and exceptional cases. The Bill proposed to make a difference only in cases where the child at the moment of birth, or within a very short period after that event, was supposed to have lost its life by the act of the mother; but, in cases of unassisted birth, children were in great danger of losing their lives without any guilt on the part of the mother. It might be said that an alteration of the law might increase the crime of infanticide; but, to his mind, it would not have any such effect, and juries would not then hesitate to find verdicts according to the evidence, and the certainty of punishment that would follow would have a deterrent effect, and give more security to preservation of infant life.

MR. COLE

said, the eases which the Bill of the hon. and learned Member proposed to deal with had become a disgrace to the law of the country. There was not a circuit at which women were not indicted for the alleged crime of infanticide; and in these cases there was almost a moral certainty of the woman being acquitted by the jury. The principal reason was that juries would not convict when they knew that the extreme penalty of the law was to be carried out for the offence committed. The great thing in legislation of this kind was to see that the punishment should be certain. There was not a known instance—certainly for many years past—in which a woman who had been convicted of infant murder had suffered the extreme penalty of the law. Therefore, there ought to be an alteration in the law. This Bill created a new offence, for which the person on conviction would receive a very commensurate punishment. Though this new offence was created, the old offence of murder still remained. There might be some of these offences of so bad a character that the persons would be indicted under the old indictment for murder, and there was nothing in this Bill to hinder it being done. The effect of the 3rd section of this Bill would be to obtain more convictions, and with this certainty the result would naturally be further protection for the child. The ablest Judges in the land had all pronounced against the present law. One of the greatest difficulties in the conviction of women as the law now stood was that the child must have had an independent or separate existence from the mother before the wound had been inflicted that caused the death. The great defence always set up by a skilful counsel was that the child had had no separate or independent existence, that it was not completely born, and possessed no independent circulation. This Bill did away with that absurd distinction, and the person who caused the death of a child would be convicted without reference to whether the child had attained a separate existence. The Bill would meet the difficulties of the case, and be a most valuable measure.

MR. EVANS

, having been a Member of the Committee referred to by the hon. and learned Gentleman, considered the proposal contained in his Bill to alter and amend the law necessary, and he hoped the measure would not be defeated. As the law now stood juries would not convict of murder. He thought that the measure would tend to the preservation of life, and, seeing that a change in the law was necessary, he should give his vote for the second reading.

MR. KNIGHT

said, that when the Act of Elizabeth with reference to bas-tardy was altered, those who opposed the alteration had prophesied that infanticide would become more common, from the difficulty that had been thrown upon the poor unfortunate woman to prove the paternity of her offspring. Their idea had been fully borne out, and, so far from passing this measure, which he thought would have the effect of legalizing murders of this kind, he trusted that the House would rather return to the old law with reference to the subject, during the existence of which infanticide was almost unknown. Were the law restored to its original state she could establish a claim for the support of the child upon the putative father, or else upon the parish.

MR. RUSSELL GURNEY

said, the question was whether infanticide was to be committed with impunity, as it was under the present law. Speaking with the experience of a Judge who had been for many years engaged in the administration of the criminal law, he attributed the failure of justice in cases of infanticide to the difficulty of proving that the infant had ever a separate existence from the mother. This Bill met that case by providing a penalty for any violence done to a child, either before its birth, or in the course of its birth, and was so far a valuable improvement of the present law.

MR. WHALLEY

considered that a Bill of such importance as the one now before the House should not have been introduced by a private Member, but should come before them on the Government of the country.

THE SOLICITOR GENERAL

said, he should not give his support to the Bill if he thought it would facilitate infanticide. He believed the Bill would do no- thing of the sort. When a woman was indicted for the murder of her child it was almost impossible to obtain a conviction, because, according to the law of this country a child could not be held to be murdered, unless it could be proved that there was an independent circulation in the child and that it had been completely born into the world; and it was very difficult to obtain medical or other testimony on the subject. Therefore, a Bill of this sort was necessary, and it would effect, in his opinion, a very just and desirable alteration of the law. Instead of encouraging the commission of the crime of infanticide, he believed it would greatly deter women from the commission of that crime, and for that reason he should support it. He must, however, draw the attention of the hon. and learned Member for Salford to the fact that under the Bill, an accessory to the infliction of a malicious wound upon a child could not be punished. It was not desirable that such a result as that should occur. In the Bill introduced by the hon. and learned Member in 1873, the indictment was not restricted to the mother of the child. But he could not find fault with the hon. and learned Member, because he had drawn the Bill in conformity with the language of the Select Committee to whom the Bill was referred.

SIR HENRY JAMES

said, the general opinion of the House evidently was, that the Bill should be read a second time, and the criticisms offered upon it were rather' matters for consideration in Committee. One of the advantages of the Bill was, that it would meet the practical evil arising from the fact that when a woman was indicted for the murder of her child, there was often so much sympathy with her in her peculiar circumstances that juries refused to convict, and she was subsequently acquitted as if entirely innocent. There were one or points in which the Bill might be advantageously amended in Committee; but with that reservation, he was of opinion that the measure, supported as it was by the practical experience of the right hon. and learned Gentleman the Recorder of London, was one which it was desirable to pass.

Motion agreed to.

Bill read a second time and committed for Friday, 28th May.