an abortion or expelled fœtus, and not a child capable of independent existence. Long before mature birth, its heart has been beating, from the fifth month, at the rate of 130 beats a minute, growing slower as the months run on; and there is no fixing when the heart began to beat, so that the commencement of the heart's action is also unascertainable. But before birth the child does not breathe. Its lungs grow, but do not respire. Blood circulates in their tissues, but no air reaches their tubes and cells to aerate the circulating blood. They lie against the backbone in a narrow chest, dark-coloured like the liver. At birth this arrangement is changed. The air rushes into the lungs, and they inflate as the infant cries, giving them their first exercise-very violent to begin with. Respiration, then, is the chief change at birth; and the appearance and condition of the lungs are the proof of it. They are changed in colour, from the dark yellowish-blue liver colour to a pinkish blue; they crepitate, or glide away from pressure in the hand, like an air-cushion; there is a good deal more blood in them, and, upon the whole, they are heavier. But-and what is of the most importance as a test-the lungs, which sink in pure water before respiration, both in their entire state and in pieces, float after respiration, both in their entire state and when cut into portions. This last is called the hydrostatic test, and depends on the decrease of the specific gravity of the lungs, owing to the presence of air in them, and diffused through their tissues into the smallest cells.

The hydrostatic test may be fulfilled in three ways, exclusive of complete living birth. (1.) The lungs may be artifically inflated; (2.) they may be inflated by gases generated during decomposition; and (3.) by respiration antecedent to complete birth. The first is never likely to give rise to any difficulty in a trial for child-murder; for artificial inflation of the lungs is very unlikely to be attempted by any woman likely to be suspected of child-murder; and, besides, the artificial inflation is never so complete as the natural. The second can only be a source of difficulty when the body has lain a considerable time, and decomposition has gone on considerably; but the third is a source of difficulty-great difficulty in the opinion of all medical jurists, insurmountable difficulty in the opinion of many of the most eminent. This arises from the fact, that children have been known, though very rarely, to breathe in the uterus after the rupture of the membranes, and in the vagina during birth, and after the protrusion of the head before the birth of the entire body; the child's body sticking in the vagina owing to unusual breadth of shoulders, or the weakness and relaxation of the expulsive efforts of the uterus. Between the lungs of a child that has breathed in that way, and the lungs of a child that has breathed after complete birth, there is no sure distinction. In the opinion of some, full inflation can never take place before complete birth; but Taylor, in his well-known Medical Jurisprudence, gives a case where each lung floated when cut into sixteen pieces, and after they had

been subjected to forcible compression in a folded cloth (there was an absence of crepitation however); and in this case the child was born dead, its brain having been broken up and partly evacuated before it had left its mother's body, and before it cried. Dr William Hunter puts this difficulty very clearly, in his essay "On the Uncertainty of the Signs of Life in Bastard Children.” "A child will commonly breathe as soon as its mouth is born or protruded from the mother; and, in that case, may lose its life before its body be born, especially when there happens to be a considerable interval between what we may call the birth of the child's head and the protrusion of its body. And if this may happen when the best assistance is at hand, it is still more likely to happen when there is none, this is, where the woman is delivered by herself."

The hydrostatic test, then, which is the best and only test of life at the time of birth, does not prove complete living birth. The child may die in being born, or it may be wilfully destroyed in being born, and in both cases it may have breathed; and yet there would be no sure evidence that it died, or had injuries inflicted to cause its death, after complete expulsion from the body of its mother. That renders it impossible to fix when the child died, and therefore impossible to prove child-murder, unless the child has been seen living, because the wilful destruction of the child may have taken place before it was fully born. Its skull may have been fractured, or its brain pierced by a sharp instrument, or it may have been strangled after it has breathed and before it is born.

There is also considerable, though not by any means so hopeless uncertainty, as to the means by which a child has died; the soft tissues of its body not readily retaining any distinctive mark, and its life being fragile and subject to many accidents. Suffocation leaves no decided marks unless undue violence has been used; and suffocation may take place among the natural discharges, or by its mouth lying against the wet clothes, when the mother is delivered alone, before she can rise to save her child. Strangulation may take place in delivery by the umbilical cord being twisted around the neck of the child, which is a very common occurrence, and one likely to prove fatal when there is no skilled hand there to extricate the child. Fracture of the bones of the skull, by their being forcibly driven against the bones of the pelvis during delivery, is not uncommon; and if the mother is sitting or partially standing when delivered, or even lying on her side, a fall from her person may fracture the skull of the child. Drowning in adults is almost invariably accompanied by water in the stomach, and bloody mucus in the air-tubes, which sometimes reaches the mouth; but the infant has not acquired the habit of swallowing, and the bloody mucus has been seen in convulsions. In fine, unless some of the tissues be destroyed, the skull smashed, or the throat cut, or a punctured wound be made into the brain, spine, heart, or other vital part, or unless a cord be left about the neck, or some such obvious symbol of artificial violence be used,

the death may almost always be accounted for by natural causes. But still, though there be evidence which would convince the vulgar of the death being caused by it (for why else should it be applied?), yet there are no certain signs by which it can be settled whether the violence was applied before death or very shortly after it. When a wound is made in a living body, the edges of it evert or curl back, and the tissues under the skin press forward as if to prevent the loss of blood. If a severe blow be given, the blood is driven from the capillaries, some of them bursting, and stagnates in a blue mark termed ecchymosis; and under a very tight ligature the same thing is seen, the tissues under it being infiltrated with blood. But all this happens in precisely the same way after the action of the heart has ceased and the body is virtually dead, so long as the local tissues affected retain their vitality, which they do until the rigor mortis supervenes.

Such, generally, is the uncertainty as to the when and the why a child has died; and the manner in which it affects the issue of trials for child-murder is of the highest interest and importance. Many more acquittals take place upon the doubt as to the time when, than as to the means by which, the child died; the latter varying much according to circumstances, and depending upon moral considerations, not upon science, as the former almost constantly does.

In England, conviction for child-murder is very rare, as the English judges have long been accustomed to charge juries that the Crown must prove complete living birth. Baron Parke, at the Herts Lent assizes, in 1841, put the point thus :-"There is a degree of doubt whether the infant has been born alive. The law requires that this should be clearly proved, and that the whole body of the child should have come from the body of the parent." And on this doubt mothers have been acquitted even when a ligature of tape, or of rag, has been found about the neck of the dead infant, and, in more than one case, when its skull has been fractured or its throat cut.1

Our Scotch judges have not been so explicit in their statement of the law, although our indictments always contain an assertion of the prisoner's guilt, to the effect that she, having been delivered of a living child, did murder the same-leaving it, however, for the judge to define what delivery is in law. It has been the custom rather to allow juries to bring in verdicts of culpable homicide, than to follow out boldly and logically the principle of the law, as explained by medical jurisprudence, with its humane but sceptical

1 Most of the important English cases are commented on in Taylor's Medical Jurisprudence, in a very suggestive way. In reading that useful book, it is well for a lawyer to remember that the author of it writes as a physiologist, who considers the proof of complete living birth anomalous and unreasonable. In Cox's Criminal Cases, from 1843 to 1855, there is not a single reported conviction for child-murder.

results; or, what is more common still, these unfortunate mothers have escaped with a year's imprisonment for concealment of pregnancy. But recently, the logical and scientific manner of viewing this crime of infanticide, and the judicious manner of avoiding the escape of an intended and very probable culprit on the one hand, and awarding an excessive punishment on the other, stood forth in a contrast so decided, that we hope it will bring them into collision, and allow some sort of equitable rule to arise out of their ruins.

Two cases of infanticide were tried at the last Autumn Circuits,— the one at Perth, and the other at Ayr,-almost identical in every important circumstance, but quite different in the result. Jane M'Intyre, tried at Ayr before Lord Ardmillan, was an out-door worker; noticed by her neighbours to have been visibly in the family way for some months. On 22d June she complained of weakness in the legs, and left off working a little after five o'clock. She sat down for a little, and was in a few minutes seen going away homewards through the fields by the nearest road. She had been delivered of a child on the way home; and the child was found three days after, by persons directed to the spot by her. Around the child's neck was a piece of white tape, passed once, and tied very tightly, indenting the flesh deeply. She confessed to various witnesses that she had killed the child with this tape; and in her declaration she said, "I was lying on the ground when I gave birth to the child, and it was born alive. I took away the child's life by tying a piece of tape round its neck. The child was dead before I left it." The medical report stated that the lungs covered the heart, and floated in water; but contained no definite signs of strangulation, the heart being natural, and no injury being observed in the trachea or ecchymosis about the neck. So far this case was virtually identical with that of Jean Macallum, tried at Perth before the Lord Justice-Clerk. She was dairy-maid at Braco Castle, and had been suspected of being in the family way, though she had mentioned it to no one except the father of the child. On 31st July she rose at her usual hour of half-past five in the morning to milk the cows; being to appearance well, though she had moaned, and exhibited signs of illness on the previous night. She came in about eight, as usual; only a little later than usual. Between ten and twelve she was missed and sought after. The hen-house door was observed to be locked, which it never used to be; and, as some of the women about the place were looking for her, she came out, looking pale, and her clothes wet as if she had been washing them, and at one part marked with blood. Her child was found, immediately on suspicion being aroused, by some of her fellow-servants in a bag in the hen-house, with her garter a piece of black tape-wound three times, and very tightly, round its neck, and knotted. In her declaration she stated that she tied her garter around the child's neck, and that it never cried or moved; and to several witnesses she said that the child would have cried if she had let it. The lungs were fully inflated in every

part, and when cut in 24 pieces, every piece floated buoyantly. The doctors did not think they could have been so fully inflated if the child had not been born alive. They did not appear to have filled the chest so completely as in the other case; and that was the only point of evidence favourable to Jane Macallum. She segregated herself from help; Jane M'Intyre was on her way home. She was perfectly self-possessed both before and after the deed; M'Intyre was melancholy, silent, and irritable for months before; and in the left hemisphere of the brain of M'Intyre's child there was a clot of blood which was quite sufficient to account for its death, and with which it could not have lived. In neither case was there any proof of life except the hydrostatic test; in neither case was there any evidence that the child had been born alive, except the ligature which the mother had placed about its neck with the view to kill it, if it were really living. But the two judges who addressed the juries entertained different views, or had matured different opinions of the law as to complete birth. The counsel in both cases maintained that there was no evidence that the child was fully born alive; and the counsel in M'Intyre's case further maintained that she was no competent judge as to whether the child was alive or not, and that its death, according to the signs, could be satisfactorily accounted for by another cause than strangulation. Lord Ardmillan, the presiding judge in this case, in his charge, told the jury that the hydrostatic test was uncertain, and admitted that the medical evidence as to life was conflicting, and therefore doubtful. "But, in a case of doubtful evidence," proceeded he, "what is so invaluable as the evidence of an eye-witness who saw the whole thing done? And that witness in this case is the prisoner herself. She tells that the child was born alive-that she choked it-that she saw it die," etc., etc. And so his lordship left her case to the jury, without a word as to the necessity of the public prosecutor proving that the child was fully born alive, or as to the insufficiency of the prisoner's own declaration to prove by itself so material a part of the To the jury who tried Jean Macallum, the Lord JusticeClerk himself, no tyro in medical jurisprudence, laid down as law most emphatically, that the prosecutor must prove beyond doubt that the child was fully born alive, and detached from its mother. He said that

case.

"Murder is the highest species of homicide; but that no species of homicide whatever can be committed, except upon an independent human being. A child, in law, has no independent existence until it be fully born and detached from its mother;1 and it is not, until

One point in the medical report was not turned to account in this case. The navel-string was cut at two inches or so from the body, and untied, and there had been no hæmorrhage. To us this seems to show that the blood was not circulating when the navel-string was cut, for if so, there would have been hæmorrhage. The head of Greenacre's victim was almost drained of blood, and the physiological inference in that case was, that the blood had been circulating very shortly before decapitation. The probability was, that she had been