(* 6) This implies "by the neck." See 2 Hawk. 544 notes n. o.
(* 7) By the stat. 21. Jac. 1. c. 27. and Act Ass. 1170. c. 12.
concealment by the mother of the death of a bastard child is made
murder. In justification of this, it is said, that shame is a feeling
which operates so strongly on the mind, as frequently to induce the
mother of such a child to murder it, in order to conceal her
disgrace. The act of concealment, therefore, proves she was
influenced by shame, and that influence produces a presumption that
she murdered the child. The effect of this law then is, to make what,
in its nature, is only presumptive evidence of a murder conclusive of
that fact. To this I answer, 1. So many children die before or soon
after birth, that to presume all those murdered who are found dead,
is a presumption which will lead us oftener wrong than right, and
consequently would shed more blood than it would save. 2. If the
child were born dead, the mother would naturally choose rather to
conceal it, in hopes of still keeping a good character in the
neighborhood. So that the act of concealment is far from proving the
guilt of murder on the mother. 3. If shame be a powerful affection of
the mind, is not parental love also? Is it not the strongest
affection known? Is it not greater than even that of
self-preservation? While we draw presumptions from shame, one
affection of the mind against the life of the prisoner, should we not
give some weight to presumptions from parental love, an affection at
least as strong, in favor of life? If concealment of the fact is a
presumptive evidence of murder, so strong as to overbalance all other
evidence that may possibly be produced to take away the presumption,
why not trust the force of this incontestable presumption to the
jury, who are, in a regular course, to hear presumptive, as well as
positive testimony? If the presumption arising from the act of
concealment, may be destroyed by proof positive or circumstantial to
the contrary, why should the legislature preclude that contrary
proof? Objection.
Pages:
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46