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THE

JOURNAL OF JURISPRUDENCE,

1859.

VOL. III.

EDINBURGH:
T. & T. CLARK, LAW BOOKSELLERS, GEORGE STREET.
GLASGOW : SMITH AND SON. ABERDEEN : WYLLIE AND SON.

LONDON: STEVENS AND NORTON.

MDCCCLIX.

THE

JOURNAL OF JURISPRUDENCE.

THE LAW OF INFANTICIDE. WHEN a new-born illegitimate child, which has never been seen alive except by its mother, is found dead, the ready suspicion is, that it has been murdered by her. That suspicion is of course strengthened if it be hidden in a trunk, or thrown into a pool, or put into the fire; and the suspicion will become conviction with the unscientific and the vulgar, if its throat be cut, its body mangled, or a ligature be left tied about its neck. But for the scientific there are many difficult questions to be answered—some of them, when confined by the restrictions and limitations of a humane and cautious jurisprudence, altogether unanswerable— before the certainty of a perpetrated murder can be established. These questions relate to how and when the child died; whether before, during, or after birth; and whether by wilful or accidental violence. If it died before complete birth, it is not an infant in the eye of the law, but a fætus merely; if it die by the pressure of parturition, or by accidental injury, or from congenital disease, known or unknown, no one is to blame for its death; and, accordingly, there can never be infanticide, either when the child dies before complete birth, or during birth, or after birth, from some cause for which no one is responsible.

Physiologists define somatic death, or the death of the entire body, to take place when the action of the heart ceases; but they have no practical definition of when the life of a child begins. Åbstractly considered, the life of the being begins immediately on conception; but the period at which conception takes place is, generally speaking, unascertainable, or known only to the mother. And there is no other point which can be fixed physiologically as the beginning of vitality; the old notion of quickening at the fourth or fifth month being quite imaginary and uncertain ; actual quickening having taken place at the date of conception. Until the child be born, it is a fætus; but if born prematurely, before the seventh month or thereby, it will be

VOL. II.-NO. XXV. JANUARY 1859.

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