Up to now. Deputy O'Higgins is a lawyer and he will know the answer. That remark is prompted by the feeling that I think this is a case where it would have been desirable to have other Deputies who do not see it from the procedural point of view taking an interest. We are dealing with a fundamental question of right and wrong. There is such a thing as objective right and wrong. We are dealing with unlawful killing—murder. In dealing with such a subject one has to approach it fundamentally in a different way from what I might call merely procedural matters. Many of our laws are really regulations for running the community and they do not fundamentally affect what I have called objective right and wrong. In other words, they do not fundamentally affect God's law. There are other matters which do, such as this Bill covers. We have no discretion in this matter; the thing is either right or wrong. The first thing we have to do in looking at the principle of this Bill is to contemplate the killing of a child by its mother within a year of its birth and to consider the law of punishment applicable to that. It is conceivable that in many cases—in fact, it is very probable—coming within that category such a killing will be murder pure and simple objectively. In other cases, and perhaps they are in the majority, the degree of personal guilt on the part of the killer will be moderated by a certain state of mental aberration resulting from a physical condition. The whole category of crime which you have to consider will embrace everything ranging from possible complete lack of responsibility due to complete mental incapacity to cold-blooded, wilful and unadulterated murder. In the circumstances I am inclined to ask myself whether fundamentally as a matter of law it is competent to this House to make a distinction in the nature of the crime. I use the word "competent" designedly because there is such a thing as objective right and wrong. That objectivity governs us here as well as it governs anywhere else but perhaps the more practical question is whether it is proper for us in this House to legislate in this way providing for recognised degrees of responsibility in the case of such a crime as this. In other words, the question I am asking myself is whether it would not be wiser for us to leave the crime as it stands and not attempt to make a separate category but merely make provision for mitigating, the punishment in the face of certain circumstances. I raise that question in no contentious or argumentative spirit. I do it because there is, as I have said, a question of objective right and wrong involved and, secondly, because I would be very careful in matters of this nature in following English precedent. I would not be too happy blindly to subscribe to anything resulting from the traditions of English liberal thought on this matter.
Having posed that question, I ask this one. What is the case for making any alteration in the law at all? As Deputy Moran said, murder is murder. The case is the one which has been mentioned by Deputy Sir John Esmonde and Deputy Captain Cowan. It is one of difficulties in procedure and, in particular, that one was always up against the difficulty that, if you charged a person with murder and the jury did not feel that it was a case for the death sentence, they were inclined to acquit. The very severity of the proceedings operated to defeat justice. That is one argument in the case. But, as against that, on the form of the Bill as it stands, is it right, where a question of objective right and wrong is concerned, so to speak, even if only formally, to facilitate the commission of a crime which, objectively, is nothing short of murder?
For that reason, if I were approaching the matter, I should be inclined to take this view. I would leave the crime called murder. I would recognise that the crime is murder, murder in God's law or natural law, if you like, with the qualification put on to it with regard to culpability or competency. Let the crime be recognised as murder and then make specific provisions for the mitigation of the punishment to suit a particular case. I do recognise that that is easily stated, but that to draft a practical proposal on these lines is not quite the same thing,
What can you do? First of all you can leave the status quo as it is. You can let the person be tried, convicted of murder, duly sentenced, and leave it as the function of the Executive, as a prerogative of mercy, to remit the sentence or otherwise modify it as the circumstances seem to demand. That perhaps, from one approach, would be the more or less proper thing to do, provided you authorise the Executive to do more than reprieve, that is to attach whatever would be a suitable penalty. That is one possible solution. Incidentally, I might mention, with respect to the speaker who said it, that I do not see why there should be any objection to the full formalities of the trial. I do not see why such a terrible thing as the killing of a child should not be dealt with as a solemn and extremely serious procedure. I do not think that argument carries so much weight.
Another possibility is in the Bill and, perhaps, everybody exercising his own ingenuity could find other alternatives. Briefly, they would be sorted out into the two categories I have mentioned. As a solution, what should we do? Perhaps, procedurally, the Bill goes very near the mark. Personally, I would urge that we should recognise that murder is murder. There may be excuses for the person committing it. I admit that I am not using the word "murder" in the sense of the definition of the legal text-book, because one has to consider the public and our own outlook on this as well. I would be inclined to use the word "murder." This word "infanticide" savours a bit too much to my mind of English liberal thought. Then, what is the objection to doing, what in fact you are doing under Section 2—letting it go forward to the jury to find whether the person is guilty or not, but leaving it open to them to find that, at the time of the act, the balance of the mother's mind was disturbed by reason of not having fully recovered from the effect of giving birth to the child, or by reason of the effect of lactation consequent on the birth of the child. Let the jury include that finding if the case warrants it, and either give a discretionary power to the judge in regard to the penalty, or else to the Executive.
Approaching it from that point of view, in fact approaching it from the point of view of the Bill, if I understand Deputy Sir John Esmonde aright, I am inclined to agree with what he said about Section 1. If you read this Bill carefully, you will find that Section 1 virtually leaves it to the district justice to decide whether it is murder or infanticide. In other words, the district justice, when he takes the depositions, has to make up his mind whether he will return the woman for trial on a charge of murder or on a charge of infanticide. Does that not mean that he is deciding the question as to which the crime is and merely leaving it to the jury to find whether the person is guilty of any crime or not? Is not that the effect of Section 1?:
"On the preliminary investigation by the District Court of a charge against a woman for the murder of her child, being a child under the age of 12 months, the justice may, if he thinks proper, alter the charge to one of infanticide and send her forward for trial on that charge."
Does that not mean that the district justice decides the question of murder as against infanticide and merely leaves it to the jury to find whether she is guilty of any charge at all?
Deputy Moran suggested that you should leave the whole thing to the district justice. Personally, I could not subscribe to that view. Murder is murder, to use his own words. It is a serious thing in principle and in fact for the community. The fact that an unfortunate child is under the age of 12 months does not in any way alter the gravity of the crime. That child has the same right to live, the same place in the sun, as any other human being. I cannot see why its killing should be treated as being of such a trivial nature that jurisdiction should be given to the District Court. Consequently I must differ with my Colleague, Deputy Moran, on that point. As Deputy Sir John Esmonde pointed out there is to some extent an anomaly there. I hope I am not misquoting the Deputy but that is what I understand him to point out, that there is an anomaly there. Again, for that very reason which is a technical one quite apart from the more objective reason which I tried to mention earlier—a purely technical reason in regard to drafting in Section 1 I suggest that the word murder be retained. In other words, if you retain the word "murder" the district justice returns for trial simpliciter as heretofore and you are not complicating the issue by bringing in the element of decision as to the nature of the crime, or consequent punishment at the deposition stage. If you do as I am suggesting then the woman goes forward on a charge of murder but you so alter the law that you empower the jury to find a certain qualification in certain cases and the jury so find. I think that that procedure will equally well meet the purposes for which this is intended while maintaining the proper attitude to the degree of crime involved. The danger is that we are focussing ourselves on the case that we too frequently see forgetting the other case of murder embraced in this particular enactment. I press my point with a view to showing and maintaining the respect which this House must hold for human life and the human soul. The question as to whether it should be remission or whether the judge should be empowered is another day's work but should be capable of practical solution. What I am trying to say is that here you are dealing not merely with man law but with the objective law of the universe and with fundamental natural law. Consequently, we must avoid the pitfalls into which we might be brought by the emanations of liberal thought. Having got our feet on the ground in regard to the principle we have to look to the practical problems from the point of view of effectively enforcing the law, having balanced on the one hand too severe restrictions which would defeat themselves and, on the other hand, too lenient provisions which in effect operate to encourage or if not to encourage not sufficiently to deter a certain type of crime.
Now, in regard to Section 4 of the Bill it might be well to read Section 60, to which it refers. Very often we pass enactments that refer to sections without having the relevant section read in the House. Sub-section (4) refers to Offences against the Person Act of 1861, Section 60. That section reads:
"If any Woman shall be delivered of a Child, every Person who shall, by any secret Disposition of the dead Body of the said Child, whether such Child died before, at, or after its Birth, endeavour to conceal the Birth thereof, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour: Provided that if any Person tried for the Murder of any Child shall be acquitted thereof, it shall be lawful for the Jury by whose Verdict such Person shall be acquitted to find, in case it shall so appear in Evidence, that the Child had recently been born, and that such Person did, by some secret Disposition of the dead Body of such Child, endeavour to conceal the Birth thereof, and thereupon the Court may pass such sentence as if such Person had been convicted upon an Indictment for the Concealment of the Birth."
There you have, nearly 100 years ago, an effort in the direction in which we are making to-day. What did they do? They created a statutory offence of concealing the birth of a child and related it to the disposal of the dead body. Then they explicitly provided for the problem that we are up against, that a jury, because of mitigating circumstances, would not convict of murder. It provided where a person was acquitted on the charge of murder that that person would be liable to a sentence on the charge of the concealment of birth and to meet the case they provided that: "The court may pass such sentence as if such person had been convicted upon an indictment for the concealment of the birth." That is similar to what we say here. The point in regard to sub-section (4) of this Bill is that you are now going to put that alternative in in the case of infanticide. If you create the statutory crime of infanticide now you will have the possibility, under the original Section 60, of the alternative of concealment of birth. Under this infanticide charge the alternative will lie there, and if acquitted of the alternative there is still the other charge here. I am not altogether satisfied that that is going to be a satisfactory state of the law at all.
I hope I am not giving the impression that I am just attacking this Bill. I am not. There is a problem there, admittedly, for which a solution should be found, but as other people have not pointed it out I have felt it incumbent on me to do so. Again, by virtue of the fact that you are introducing the further possibility into the section that you will have cross-references, you are bringing in technical law, with the absurd result that technical law brings in particular cases.
Having regard to that fact, would it not be simpler to enact a simple Bill of one section to the effect that murder in a certain case can be qualified by a jury rider roughly corresponding to the terms of sub-section (3) here, leaving it at that and, if necessary, giving a discretion to the court, cutting out this anomaly represented in sub-section (1) and dropping out sub-section (4), which again would become unnecessary, and, lastly, in cutting away from following the line taken in another country we will be showing that we in this country still recognise the dignity and the importance of human life from the moment of conception to the grave.
