If any person commit petty treason, or a husband murder his wife, a parent his child,* or a child his parent, he shall suffer death by hanging, and his body be delivered to anatomists to be dissected.
* By the stat. 21.Tac. 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. 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. 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 conclusive proof be difficult to
be obtained, shall we therefore fasten irremovably upon
equivocal 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 although parental, be yet
stronger than filial affection, we admit saticide proved on
the most equivocal testimony, whilst they rejected all proof
of an act, certainly not more repugnant to nature, as of a
thing impossible, improvable. See Beccaria, § 31.
Whosoever committeth murder by poisoning, shall suffer death by poison.
Whosoever committeth murder by way of duel, shall suffer death by hanging; and if he were the challenger, his body, after death, shall be gibbeted.* He who removeth it from the gibbet, shall be guilty of a misdemeanor; and the officer shall see that it be replaced.
* 25 G. 2. c. 37.
Whosoever shall commit murder in any other way, shall suffer death by hanging.
And in all cases of petty treason and murder, one half of the lands and goods of the offender shall be forfeited to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only, where one shall slay the challenger in a duel,* in which case, no part of his lands or goods shall be forfeited to the kindred of the party slain, but, instead thereof, a moiety shall go to the Commonwealth.
* Quære, if the estates of both parties in a duel should not
be forfeited? The deceased is equally guilty with a suicide.
The same evidence* shall suffice, and order and course** of trial be observed in cases of petty treason, as in those of other*** murders.