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or elsewhere, and thereof be convicted of open deed, by the evi- dence of two sufficient witnesses, or his own voluntary confession, the said cases, and no* others, shall be adjudged treasons which extend to the Commonwealth, and the person so convicted shall suffer death by hanging,† and shall forfeit his lands and goods to the Commonwealth.
If any person commit Petty treason, or a husband murder his wife, a parentt his child, or a child his parent, he shall suffer death
of treason of that kind in England, have been under that branch of the statute which makes the compassing the king’s death treason. Foster 196.197. But as we omit that branch, we must by other means reach this flagrant case.
- The stat. 25. E. 3. directs all other cases of treasons to await the opinion
of Parliament. This has the effect of negative words, excluding all other treasons. As we drop that part of the statute, we must, by negative words, prevent an inundation of common law treasons. I strike out the word ‘it,’ therefore, and insert ‘ the said cases and no others.’ Quere, how far those ne- gative words may affect the case of accomplices above mentioned ? Though if their case was within the statute, so as that it needed not await the opinion of Parliament, it should seem to be also within our act, so as not to be ousted by the negative words.
† This implies ‘ by the neck.’ See 2 Hawk. 444. notes n. o.
‡ By the stat. 21. Jac. 1. c. 27. and Act Ass. 1710. 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. Tothis I answer, I. 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 wovld 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 evi- dence 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, aris- ing from the act of concealment, may be destroyed by proof positive or cir- cumstantial to the contrary, why should the feviaintiive preclude that contrary proof? Objection. The crime is difficult to prove, being usually committed in secret. Answer. But circumstantial proof will do; for example, marks of violence, the behavior, countenance, &c. of the prisoner, &c. And if conclu- sive proof be difficult to be obtained, shall we therefore fasten irremovably upon €quivocal proof? Can we change the nature of what is contestable, and make it incontestable ? Can we make that conclusive which God and nature have made inconclusive ? Solon made no law against parricide, supposing it impossible any one could be guilty of it; and the Persians, from the same opinion, adjudged all who killed their reputed parents to be bastards: and
