voured to illustrate at some length; another we believe to be the frequent, almost invariable combination in the same libel of childmurder and the statutory crime of concealment of pregnancy. How often is it seen, even in cases of an aggravated description, that the Jury return into Court with a verdict of guilty on the minor charge? What is the reason of this-setting aside for the moment the difficulties of establishing the greater crime-but the facility with which the Jury, out of merciful considerations which counsel never fail to urge upon them, jump to the lower verdict to which it almost seems they are invited by the libel itself. And there is no reason in the combination. It is often expedient and even necessary to include several crimes in one indictment, such as murder and assault, or robbery and theft, or mobbing and rioting and breach of the peace, because it is often difficult to say where the one stops or passes into the other; and it would be unwise, and in the last degree rash, to peril a case on the adoption by a Jury of the view taken by the authorities who initiate the proceedings. Many a prisoner has escaped who has been clearly proved guilty of a crime known to the law on account of its not being set forth in the libel, which might easily have been done as an alternative charge; and accordingly it is now esteemed the safe, and it is the universal, practice in criminal pleading to frame the libel as comprehensively as possible. But there is no danger of a Jury confounding concealment of pregnancy with child-murder, and vice versa. Two conditions determine the former crime. (1.) That the child has been found dead. (2.) That no disclosure of pregnancy has been made before birth. Whether a child has been born dead or alive, is a fact for which, fortunately, there is an unfailing test. In the case of its being found dead without any suggestion that it has ever lived, no other charge of course is to be looked for even from the most zealous prosecutor than one of concealment of pregnancy. If it is clear that the child has been born alive, and, although found dead, there are no marks of violence, it is equally clear that in the present state of the law, and according to existing appliances for detection, it would be highly reprehensible to indict for anything beyond the minor charge. The only case in which there is any justification for putting the two crimes together is when artificial violence can reasonably be expected to be proved to be the cause of death, and there are at the same time facts from which, on the failure of the graver charge, the minor may be inferred. But even in these circumstances we think the combination is objectionable. If the Crown evidence is strong in the direction of guilt, it is unjust to the law to give the jury an opportunity, which they seldom fail to use, of getting rid of an unpleasant duty. If the evidence is of an opposite tendency it is quite hopeless in presence of known difficulties to look for a conviction of child-murder, and no prosecutor should libel beyond what he can reasonably expect to establish; and if the evidence on the graver charge be doubtful, while there is a possibility of its proving satisVOL. XI. NO. CXXVI.-JUNE 1867.

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factory to the jury, nothing could be better conceived to prevent its being realized than the aggregation of the libel. It will be observed that in dealing with this class of cases the public prosecutor cannot experience the difficulty of a resemblance between the two crimes; for the conditions that determine both are manifest and decided, and however much juries may avail themselves of the pretext with which they are too often furnished, it is quite easy to say either before or after their verdict has been returned what crime has been committed. We omit, in this objection to the combination, any reference to the fact that a statutory crime is put beside a crime at common law. Whether in any circumstances this should be permitted, as a practice inconsistent with strict legal pleading, is a position which, in our opinion, may be very gravely argued. But there is no occasion for us to enter on that question now, believing as we do that the creation of statutory crimes is altogether indefensible and unnecessary. We do not see that they serve any purpose but to keep the door open for the escape of the guilty. The theory of the common law is elastic enough to adapt itself to any circumstances that may arise, and it is sound law and sound policy that the common law, instead of being hedged round by limitations, should be made as elastic as possible. The operation of the game laws is ample evidence of the truth of these remarks. Conceived and framed in a spirit of mere formalism, and amid the apprehension of mere subtleties, their only effect is to create legal controversies, and, as a necessary consequence, to defeat justice. But if concealment of pregnancy were libelled as a charge at common law we can see no reason why, in more than one out of ten cases, to take a very moderate average, it should be libelled in connection with child-murder rather than with any other crime.

A very important question still remains for consideration. How far, if at all, is the increase of infanticide explainable by the rigour of the punishment with which, upon conviction, it is now visited? The prevailing notion is that the punishment is too severe. But with this feeling, which we assume for the moment to be based on a legal apprehension of the nature of the crime, and of its just recompense, there is mixed up another feeling, or rather sentiment, the operation of which we cannot admit to be legitimate within the sphere of law. It may be that the later sentences of the Court for this crime have been unduly harsh, and in some cases even oppressive. That is a question which we shall have occasion immediately to consider. But it is perfectly idle to say-and whoever submits the argument unmistakeably testifies his incapacity to deal with the subject-that the law, in awarding punishment, is to take into account the moral guilt of a seducer as a mitigating circumstance in favour of the party who perpetrates the crime. Let the law if it chooses make seduction a criminal offence; we fear the objection to that suggestion would be found insuperable, that it is impossible by Acts of Parliament or criminal prosecutions to make the people moral. Or let that aspect

of the question be considered the moral one, and let the public deal with it according to strict or lenient rules as it judges proper. But we can imagine no case in which the intermixture of law and morals, administered on the footing of mere personal discretion, may prove more pernicious than in that of infanticide. Everything, according to this theory, depends on the temperament of the judge. One man of susceptible feelings will dismiss a panel from the bar with little more than an admonition, looking upon her as a martyr, almost worthy of reward. Another, conscious of self-control, and master of his emotions, will revolt at a surrender with which he cannot sympathize, and possessed by one idea, will pronounce a sentence utterly disproportionate to the circumstances of the crime. Unless a fixed standard of punishment-let the induction on which it is based be as wide as possible—is laid down it is hopeless to look to punishment as a deterrent influence at all. This, of course, does not involve a disregard of circumstances-there is no crime in the punishment of which such disregard would not ultimately lead to a complete frustration of the ends of justice; but it involves a principle in the truth of which there is now almost a universal concurrence of opinion, that certainty of punishment, certainty not only that there will be punishment, but also a certain amount of it, is a powerful agent in the repression of crime.

We are quite aware that excessive punishment is fitted to operate its own discomfiture. We have only to go back to the state of our own law some thirty or forty years ago for evidence of this. Sheepstealing was a capital offence, and what was the result? That the crime was spread broadcast over the length and breadth of the country, and that it was committed with impunity. There was no indifference to the value of property, nor any failure to recognise the wickedness and extent of the crime, but people felt that it was better to lose a sheep than to be the cause of an execution. To abate the rigour of the law was a matter of obvious necessity, only exciting the surprise that a system of law in other respects enlightened should have so long cumbered itself with the relics of a barbarous age. And what has been the effect of the abatement is sufficiently evident from the comparative rarity of the crime. It may be right incidentally to notice that there is one crime, viz., forgery, which stands upon a footing exceptional to this rule. The punishment of forgery, like sheep stealing, was also at one time capital; it is now the subject of arbitrary punishment. But the results have not been equally harmonious. While sheep-stealing has decreased, the statistics of forgery have gone the other way. The cause of this, however, is not to be found in any theories or principles of punishment; it is a natural result of the commercial activities of the age, which will exist so long as these are guided by speculation rather than by capital, and the only permanent remedy which is possible for it must come out of an improvement in the mercantile honesty of the nation. Forgery, however, is strictly an exception to the general rule that excessive punishments defeat their own ends.

But although holding these general views we cannot concur in the opinion that the present punishment of infanticide is too severe. No statement of the crime and of the circumstances in which it may be committed can detract from the fact that it is the wickedly taking away of human life. We have heard the argument more than once repeated that there are many considerations of social expediency which render the prevalence of child-murder, in an overgrown community like our own, to some extent desirable. It is said, on the one hand, that excessive population must be avoided, and on the other, that the injury being committed at a period it may be said of unconsciousness, there is no cruelty in the act itself, which may indeed prove a merciful deliverance from untold evils. To such arguments we do not profess to be able to adduce a better answer than the divine injunction of the sixth commandment.

We do not fail to distinguish the difference in magnitude between the sacrifice of infant and of adult life. But this is only in other words to say that the sin of cupidity, or unbridled passion, or deliberate revenge, is more heinous than the criminal impulses under which the crime of child-murder is frequently committed. The distinction, so far as it is established by facts, is a very proper one for the law to regard in awarding punishment. But we think a great mistake is made if the law does not start with the recognition of death as the basis of the common punishment in both crimes. Logically, and having regard to principle, they must be assimilated. The law can have no security if it proceeds from any other point of view than that both merit its extreme penalty, and that a special case must be set up if in either that does not receive effect. It is easy to conceive a case of child-murder so aggravated in its circumstances as to demand capital punishment as much as the most coldblooded murder that ever made a gallows. It is as easy to conceive a case in which such an amount of punishment would be a greater wrong than the crime itself, and it would be difficult to say that the crime of murder, properly so called, admits of so palpable a distinction. But it is matter of every-day experience that there is no crime which discloses such variety of circumstances as that of childmurder; and accordingly between the limits we have pointed out there is scope for the operation to any extent of those mitigating circumstances which it is right that the law should recognise. Our objection, therefore, to the punishment of child-murder is based not so much upon a consideration of individual cases as of the principle upon which it is administered. The true principle we hold to be that every case of murder should be punished by death, unless a very clear cause is shown to the contrary. The principle in practice is the very opposite, for everything is done by everybody concerned to avoid the award of a capital sentence even in the knowledge that that is a mere tribute to form, and will not be carried into execution. It may be said—and we have no want of sympathy with the observation-that to sentence a panel to death in the full consciousness

that the sentence will not receive effect, is a solemn mockery which is worse than useless. We only advert to the dread with which a verdict of murder is anticipated in any serious case of infanticide, for the purpose of showing that there is a want of harmony between the law and its administration which stands imperatively in need of amendment. It may be that child-murder should in no case be followed by a capital sentence-if that result commend itself let it be sanctioned by legislative enactment, or at least by the same amount of assurance that a person who has committed robbery feels that he will not be hanged. The present uncertain attitude of the law has the double effect of hampering a prisoner in his defence, and of presenting the administration of justice in anything but a dignified or impressive aspect.

For ourselves we must say we see no reason in the world why a woman who has deliberately taken away the life of her child in order o escape the burden which she is apprehensive it may prove to her, hould not be hanged just as much as the highway robber who commits murder to enrich himself with his victim's spoils. Cupidity in different forms is the basis of both crimes, and we are not aware of any principle sanctioning an estimate of the value of life by mere considerations of age. If there had not been a miscarriage of justice on mere technical grounds, is there any doubt that Charlotte Mason would have died upon the scaffold, and that the public voice would unanimously have approved the result. Is it not an a fortiori case that a mother who has the instincts of preservation which a stranger does not feel, should be visited with as much punishment when the crime is committed with the same deliberation. We confess we should like to see the experiment of sending a few heartless worldlyminded young mothers to the scaffold. Many will esteem that a hard, perhaps an un-Christian sentiment-our opinion is that the sentiment lies all the other way. For we have no belief whatever in the unconsciousness theory of self-delivery which Taylor and other judicial experts have done so much to foster with the most pernicious results to the well-being and the morals of the people. That it contains an element of truth, and that in some cases that wears a very decided aspect, it would be absurd to deny; but it would be equally absurd to deny that the proper evidence is to be sought in the facts and in the history of the case, and not in the stimulated imaginations of medical theorists. Practically, however, the law proceeds, and is administered upon a recognition of the theory to an extent that is simply ludicrous; for the mere suggestion of it will transform a sentence of penal servitude, conceived in a just apprehension of the law and of the crime which is a breach of the law into a short punishment by imprisonment. It is not an uncommon, it is in truth a usual thing, that the plea receives effect in circumstances such as these, that the mother had made no disclosure of her pregnancy, nor any preparation for the birth, that the body of the child is discovered with wounds indicating an intention to kill, that after apprehension