THE PUNISHMENT OF INFANTICIDE.

ON the 13th of December last, Mary Peterson Mahoney, a girl of eighteen, was brought to trial at Swansea for the murder of her newly born child; found guilty by the jury, and sentenced to death. The prisoner was the daughter of Irish labouring people settled at Cardiff; her father and mother had died during her childhood, and the homeless girl was adopted by a poor neighbouring family, who brought her up until she was old enough to go into service. She could neither read nor write; but in her service she bore the character of an honest industrious girl; and it was the crime and treachery of another that brought her to ruin. Her seducer forsook her, enlisted in the army, and left the country. Taken unexpectedly with the pains of child-birth, desolate, terrified, and unhelped, she destroyed her child. The precautions which mark the concealment of premeditated crime were conspicuously absent, and as soon as the police visited the house the poor girl confessed everything. It was mainly upon these confessions that her conviction rested; and they were such as to render any other verdict than guilty' impossible. Throughout the trial Mahoney's anguish was terrible to witness, and after the sentence her reason became impaired. During the next few days, although calm at times, at other times she danced and sang in her cell; and when a respite arrived on the 19th of December, it was impossible to make her understand what had happened. Sentence of death was commuted to a term of penal servitude, by the Home Secretary, with merciful promptness; but it was not until the 22nd of December, nine days after the trial, that Mahoney's reason was sufficiently restored for her to realise what had passed and what was before her.

In the opinion of every honest man who witnessed it, or who afterwards learned the facts, this trial was discreditable to English justice. The sentence pronounced was indeed one which the judge had no power to modify or to withhold, but it was nevertheless a sentence which every one, except the unhappy prisoner whose reason it overthrew, knew to be a mere cruel imposition. For thirty years

certainly, probably for a longer period, no woman has been executed in England for the destruction of her newly born child: the conscience, the justice, the humanity of the country render such a thing impossible. The sentence is a fiction which serves no purpose but the infliction of horror and despair. A law whose action in a certain class of cases has for a generation been invariably overruled is, with respect to that class of cases, obsolete. Death is not, and has not for thirty years been, the punishment of infanticide at birth. The existence of the old law has only been tolerated by the public because they have known that it is inoperative: carry it out in one single instance, and the indignation of the country would probably sweep away our entire system of capital punishment. An educated woman —a woman rich enough to have ascertained the state and operation of the law, and calm enough to rest upon that knowledge-might answer the judge who had so passed sentence upon her: You think to overwhelm me with the prospect of death: I know that I shall live. You think that I take your sentence for a fearful reality: I know it to be a form. You think that I am ignorant enough to believe you in earnest: the unvarying experience of thirty years proves that you are but acting an enforced part. Your black cap is a stage-trick your appeal to heaven for the sinner face to face with death, a solemn mockery.' 2 What answer can we make to this, except that the law may rightly count upon the poverty and ignorance of most of those whom it sentences in these cases, and that, for one person sufficiently informed to brave its imposture, there are many who may be successfully terrified and driven to the brink of madness. The words used by the judge in pronouncing sentence upon Mahoney were as follows:-'I will take care to forward to the Home Secretary the jury's recommendation to mercy, but I can give you no hope whatever, for I have no authority to do so.' Then followed the sentence of death, concluding with the solemn prayer, ‘And may the Lord have mercy upon you.' There is something so awful in the form in which death is pronounced in an English court, that even those are affected who know that the sentence will not be carried out. How overwhelming, how absolute, how inevitable, must it appear to the untaught prisoner who knows nothing of the action of the law beyond what she sees before her! What does a poor Irish girl, who cannot read or write, understand about the Home Secretary? She sees the judge assume the emblem of death; she hears him utter the words no hope whatever;' she listens to him describing minutely the mode of her execution; and she hears that solemn appeal to the

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The Judicial Statistics' of recent years, and the evidence of Sir George Grey before the Capital Punishment Commission, exhaust all cases since 1848. The Parliamentary Papers earlier than that are so unmethodical, that I am not able to make a positive statement as to a longer period.

2 This is not my expression; it is Mr. Justice Keating's.

mercy of heaven which commends her to eternity. Can she believe that all this is but a form to crush and terrify her, and that the real punishment of her crime is something quite different? With what feeling must such a person regard the law, when, at some later time, she learns that the sentence which unsettled her reason had been obsolete and unenforced for thirty years? Because I was poor and ignorant you were able to deceive me. My mind gave way because I thought that the law really meant what it said. If I had had means to find out what my real punishment would be, I should have known that you were only trying to terrify me. But I had no one to tell me this before the trial; and afterwards you strictly forbade those who visited me in prison to say one word which might make me hope that I should not really be put to death.' When the execution of a sentence, although unusual, is not quite without example, its retention may in some instances be justified as a resource against exceptionally bad cases: but to terrify a prisoner with the anticipation of a punishment absolutely certain not to be carried out-a punishment which no variety of circumstances has in one single instance been held to warrant during the space of thirty years, and from which the powerful and growing humanity of the country daily separates us more and more-approaches too nearly to a form of torture, and robs the law too largely of its truth and honour, to commend itself either to the conscience or the policy of the nation.

Two considerations guide us in determining the penalty proper to crime, the moral guilt of the criminal, and the efficacy of the punishment in checking similar offences. No measure which fails to satisfy these conditions, which either treats the offender with a severity out of proportion to his guilt, or results in the frequency and impunity of crime, can be satisfactory. Applying the first of these standards to the question of infanticide, we are forced to take into account the wrong, the shame, and the desolation, which almost always lead to the commission of this crime. Nature deals heavily with the mother of an illegitimate child: human society has indeed added every bitterness to her cup. The parent upon whom nature throws the entire burden of the common offspring is forsaken and cast off: child-birth, which to others brings the excess of love and care and every thought of increased happiness, brings to her nothing but solitary anguish, nothing but the anticipated scorn of her friends and the loss of her daily bread. The sacredness of life is indeed not a conception with which law can dispense; but while we rightly refuse to describe the act of infanticide as anything but murder, reason and feeling equally insist that the moral extenuation shall be regarded in determining the penalty. If we are told that, the greater the temptation, the greater the necessity of punishment, we accept the principle as pointing to the certainty, we reject it as pointing to the severity, of punishments. In the latter case, if the force of a

temptation is to be estimated by the known and certain ruin which the vice entails, the drunkard ought to be put to death with torments. But A life for a life' finds no echo in the just heart; and the actual infliction of death for infanticide has been long and irrevocably abandoned. Ought the punishment then to be imprisonment, with the addition of such anguish as a fictitious sentence of death inspires? No; for the law ought to be an example of sincerity, and ought not to take advantage of ignorance and simplicity to terrify people with the dread of that which it does not really intend. By such action the law puts itself in the wrong, and turns the criminal into a victim. The penalty morally proportioned to the crime of infanticide is a term of imprisonment, varying in duration according to the circumstances of the offence; and what the penalty is, the sentence should be.

There is a possibility of difference in our ideas of right and wrong; but the practical mischief of the capital sentence in infanticide is proved by facts with which sentiment has nothing to do. As the law now stands, it is all but impossible, in the trial of a woman for the murder of her newly born child, to obtain a verdict of guilty.' Let the facts be ever so convincing, no jury will subject the mother to sentence of death, if there is any possibility that her act did not fulfil every technical condition of murder; and the repugnance of the judges themselves to such a sentence has provided a means of escape which seldom fails. It has long been settled law that there can be no such thing as murder before the child has commenced its separate existence: to kill a child during the act of birth is at law no offence at all. If it is not proved to positive and logical certainty that the child was completely separated from the body of its mother at the moment when the injuries were inflicted, the jury are permitted to find, and invariably do find, a verdict of not guilty.' That practical sufficiency of evidence which in all other cases leads to a conviction is here thrown to the winds. It is known that there is no alternative but acquittal or the sentence of death: the medical witnesses, who must prove not only respiration but an independent circulation of blood in the body of the child before the infliction of violence, admit that their tests are not infallible; and the horror of the sentence invariably leads the jury to catch at this theoretical failure of proof, and to return a verdict of 'not guilty' in the face of evidence which in any other case would have made conviction certain. Only in those rare instances is the verdict of 'guilty' extorted where the child has been seen separate from its mother by some one who is willing to state this fact, or where remorse and natural truthfulness, deeply affecting in the presence of such guilt, lead the mother to confess all the particulars of her crime. The latter was the case in Mahoney's trial. It's no use telling a lie,' said that poor girl when arrested the child was alive; I killed it.' Even this confession need not have produced a verdict of guilty,' if Mahoney's further

statements had not made it clear that an interval passed between the birth of the child and its destruction. No fact is more universally acknowledged than that the effect of the present law is to render conviction for the murder of a new-born child impossible except in the rarest instances. The only operative protection which the law affords to the beginnings of life is the power given to the jury to find the mother guilty of the minor offence of 'concealment of birth,' an offence not punishable by more than two years' imprisonment. The graver crime, we unhappily cannot doubt, is too frequent in England. Coroners' inquests are held every year over the bodies of nearly five thousand children under twelve months old; and although it would be vain to attempt an estimate of the number who are wilfully killed at birth, we know that in the immense majority of cases the crime goes unpunished. Addressing the House of Commons in 1873, the present Attorney-General declared that in the whole. course of his experience he had never seen a conviction for child murder of this class. The Judicial Statistics,' however, while they prove the extreme rarity of such convictions, prove that Mahoney's case is not without parallels in late years. The names of three women.found guilty and sentenced to death for the destruction of their newly born children may be found in these records for the years 1864 and 1867, and it is probable that a few more should be added out of those cases where the age of the child is not stated. Five similar convictions are mentioned by Sir George Grey for the years 1849-64. On these unhappy women, as on Mahoney, accident or their own confession brought down that terrible and agonising sentence which has been the very source of escape to all others who have been brought to trial for the same crime. Had it been the express object of the law to leave guilt unpunished in every possible instance, and to excite the highest sympathy and pity for those whom it selected for chastisement, no contrivance could have surpassed its present results. An enactment that the proof of separate life should not be necessary to conviction might indeed cut off the present escape of the guilty; but it is vain to suggest such a thing while the sentence remains what it is. The public would assuredly revolt against a provision which would result in a greater number of capital sentences than all existing murders together.

It is satisfactory to find that the abolition of capital sentence in these cases, which is demanded by justice and rational policy, is also supported by overwhelming authority.

An examination of the whole of the evidence which was given before the Capital Punishment Commission in 1864-5 exhibits the following results. Lord Cranworth (Chancellor), Lord Wensleydale, Chief Baron Kelly, Baron Martin, Mr. Walpole (Home Secretary), Sir James F. Stephen, Serjeant Parry, and Lord S. G. Osborne, were in favour of abolishing the sentence of death for infanticide without