Child‐Killing in English Law
| DOI | http://doi.org/10.1111/j.1468-2230.1937.tb00018.x |
| Published date | 01 December 1937 |
| Author | D. Seaborne Davies |
| Date | 01 December 1937 |
Dec.,
1937
MODERN LAW REVIEW
203
CHILD-KILLING
IN
ENGLISH
LAW
1.
Introauctory
HE
history of the
law
relating to child-killing possesses
far more interest than a cursory acquaintanceship with the
subject would suggest.
A
complete account of its develop-
ment must necessarily involve
a
consideration of several other
topics which are
still
of importance in the unreformed state of our
criminal
law.
It
illustrates, in the first place, how the “antient subtility”
of
the law, particularly in its definition of the term “person”
for the purposes
of
the law of homicide, left a wide gap through
which many malefactors walked with impunity. That definition
is
sfill
of importance to-day. The narrative must then proceed to
describe the characteristic attempts of English Law to hinder
transgressors by the device of stretching across this gap in its
defences parts of the ancient equipment on other sectors of its
front against criminals. Despite the very unsatisfactory results
of this method of procedure, it was not until the ’twenties
of
this
century that the sensible suggestion prevailed that new defences
should be raised. Whilst the law was striving with the problems
presented by this ancient gap, another nearby part of its front
began to crack very ominously. The widespread dislike of the
application of the law
of
murder in all its severity to cases of
infanticides by mothers led to such
a
divorce between law and
public opinion that prisoners, witnesses, counsel, juries and even
many
of
H.M.’s
judges, conspired to defeat the law. The resulting
breakdown was in many ways more serious and complete than
that witnessed earlier in the nineteenth century when the public
revolted against the severity of punishments for larcenies or
against the attitude of the law and of the Bank of England towards
forgeries
of
bank-notes. The history
of
the attempt to grapple
with these two allied problems of the ancient gap and the new
breakdown is most instructive. It proceeded for sixty years
before the statute-book was affected and cannot yet be said to be
ended.
A
mere enumeration of the difficulties which hindered
the reformers would in itself constitute a commentary upon human
weaknesses; the list of the attempted reforms provides
a
fine
illustration of human persistence. Success was delayed not merely
by the opposition of narrowly conservative views and the refusal
of politicians to allot time to non-vote-catching measures but also
by the failure of the reformers themselves to arrive at
a
correct
or an agreed analysis of the existing legal situation and by the
resulting confusion of ideas and proposals. For an appreciable
T
MODERN
LAW
REVIEW Dec.,
1937
period after the evils of the state of the law had been painfully
realised, the two topics of what we now know
as
“Child
Destruc-
tion
”
and “Infanticide” were much confused
;
persistent attempts
were made to deal with them jointly and not separately, as was
done in
1922
and
1929.
The confusion was rendered greater by the
proposals that the evils of the law should be met not by any change
in its substantive provisions but by an alleviation of its harshness
through the exercise of judicial or executive discretion-a type
of suggestion which has delayed the reform of English criminal
law on many occasions and which
is
not unlikely to do
so
again in
the fgture.
The subject of the law relating to child-killing attracted the
attention of those interested in the reform of the criminal law
generally and, particularly, of the Law of Homicide. Hence, in
tracing its history one cannot avoid touching upon the courses of
several great movements for law reform in the nineteenth century.
Many of them involved
a
prodigious expenditure of human
efforts which hardly deserved the abortive fate which the cir-
cumstances
of
the times decreed for them. Recalling the attention
of the present generation to the exhaustive reform proposals
of men like Russell Gurney and Fitzjames Stephen is not
a
mere
academic leisure-hour task.
If
the attention of the Law Revision
Committee is directed in the future, as it has not been to date, to
the unreformed state of the criminal law, we may yet witness the
spectacle of the dust of fifty years being wiped
off
the British
Parliamentary Papers in which are deeply interred the remains
of the Victorian proposals.
No
complete account of the develop-
ment of the law relating to child-killing could neglect the informa-
tion contained in the Parliamentary Papers-a valuable but much
neglected source of legal history.
A
review of the reform proposals is necessary for
a
modem
purpose. When the Infanticide Act,
1922,
was finally enacted,
it was generally thought that
it
had terminated an unhappy
chapter in the history of the criminal law. But the Court of
Criminal Appeal has seen
fit
to re-open it. By
its
adoption in
1927
of an interpretation of the Act which, in effect, seriously
emasculated its provisions, the Court illustrated, in a type of case
peculiarly likely to touch the cords of human compassion, the
oftentimes mischievous limitations of our modem counterpart
of the
“
antient subtility ”-the adopted canons of statutory
interpretation. Consequently, reform proposals have once more
been advanced in respect of this part of the law, some of them
from the Bench and others from laymen. The former, in par-
ticular, show little appreciation of the historical background of
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