is an accessary to the murder." 1 Hawk. P. C. 121, and authorities there cited.
By the old law[1] there was this difference between ordinary murder, and the murder of bastard children, that in the latter case the onus probandi was in some measure thrown upon the supposed criminal, a practice totally at variance with our general principles of justice; and though many fictions and judicial evasions were resorted to for the purpose of softening the extreme rigor of this statute,[2] as by supposing that very slight circumstances, as knocking for help when in labour, providing linen, &c. took away the concealment,[3] yet the law remained in nominal force till the passing of the stat. 43 Geo. 3, c. 58, by which it is enacted that trials of women for the murder of bastard children should proceed on the same rules of evidence as trials for murder.[4]*
- ↑ By the Stat. 21 Jac. c. 27. If a woman delivered of issue, which being born alive would be a bastard, endeavour by burying, drowning, &c. by herself or others, so as to conceal its death, that it may not appear, whether born alive or not, it is murder, unless she prove by one witness at least, that it was born dead. Ba. Abr. tit. Bastard.
- ↑ We are strongly inclined to believe the assertion, that where the severity of a statute is excessive, judges, juries, and prosecutors, enter into a league to defeat its rigor.
- ↑ The law of Scotland was yet more severe; the mere fact of concealing the pregnancy, whether the death of the child were proved or not, was a capital felony. See 1 Hume's Com. 287, and 1 Burnet's Crim. Law, tit. Child-murder, and many cases there cited The child of Margaret Dickson, to whose case we have alluded, vol. ii, p. 91, was legitimate.
- ↑ III. "And whereas doubts have been entertained respecting the true sense and meaning of a certain Act of Parliament made in England, in the twenty-first year of the reign of his late Majesty King James the first, intituled, an act to prevent the destroying and murthering of bastard children, and also of a certain Act of Parliament, made in Ireland in the sixth year of the reign of her late Majesty Queen Anne, intituled, an act to prevent the destroying and murthering of bastard children; and the same have been found in sundry cases, difficult and inconvenient to be put in prac-*
