Jeff parkes
























by Jeff Parkes © 2005

Earlier this year (2005) a 15-year-old girl left her dead baby in a Glasgow park pond. She had given him a name – Alexander – and left a note for him. She also took herself off to the police. A sad affair, indeed. Even the police had sympathy for her situation and recommended not charging her. However, the procurator fiscal disagreed. The girl, now 16, was charged with concealment of pregnancy.

Concealment of Birth (Scotland) Act 1809

"And if after the passing of this Act, any woman in Scotland shall conceal her being with child during the whole period of her pregnancy and shall not call for and make use of help or assistance in the birth, and if the child be found dead or be amissing, the mother, being lawfully convicted thereof, shall be imprisoned for a period not exceeding two years."

The Act replaced an earlier one of 1690 which was more severe. Such concealment was considered murder. In February 1693 Mary McLucas was thus accused, found guilty and hanged. (Argyll Justiciary Records Vol. 1 pp 146–148)

In the days of the Justiciary Records a confession by the prisoner was usually enough to secure a conviction. No further evidence was necessary and once guilt was admitted it was virtually impossible to change the situation. Even cases involving the death penalty required nothing more. It is open to debate how reliable many confessions might have been or under what circumstances they were obtained. However, the confession was not considered a plea of guilty, but merely evidence and the jury always retired to decide their verdict.

A confession, even though freely given, was not necessarily the end of the story. In 1719 Mary McIver was indicted for the crime of murder, the victim being her own newly born baby. She had concealed her pregnancy, given birth without help from any other person and then buried the baby near to the house of her employer. When challenged, the girl confessed and was charged under an Act referring to the murder of children.

Angus Campbell, procurator in defence, pointed out that this Act had to be published at the mercat crosses of the burghs and also read out in the parish churches. Further, the Act of Parliament had to be published in the parish churches twice a year; this had not been done and therefore the pannel could plead ignorantia legis (ignorance of the legislation).

A second line of defence was that the Act stated a woman should conceal her pregnancy during "the whole space". Mary McIver was ten to fifteen weeks short of the whole space, as verified by a surgeon and midwife who had viewed the body. Thirdly, the pannel had not been pregnant before and "did not know she was with chyld and so cannot be accused for concealing her being with chyld she not having felt the same sensibly in her womb". Fourthly, the Act stated no help or assistance should be obtained from anyone, but Mary McIver had confessed that "she did call to Katharin Black her fellow servant severall tymes though she did not answer".

The prosecution dismissed the first defence on the grounds that all Acts of Parliament are supposed to be displayed and published, but there were far too many of them and the legal system would ground to a halt if the procedures were followed. The pannell could not pretend ignorance of the Act for there had been several persons in the Shire executed for the same crime, one of them from the same parish where "this pannell did reside for a considerable tyme". If a minister failed to read the Act in church, he might be censured, but his neglect could not be used as an excuse for contravening it.

With regard to the second defence, "there is no certain rule of the tyme of womens going with chyld untill the birth come to maturity for its weel known that some women have brought forth mature births some in seven months, some eight, some in nyne and some have gone the length of tenth months which lykewayes cutts off the third defence as to the pannells concealing her being with chyld".

The fourth defence was dismissed because calling Katharin Black at the very moment of birth did not mean she could render assistance, and, anyway, the pannell had left the bed where both women were lying and gone to another room. By doing that she intended not to have any assistance, even though there were others who could have helped. Also, the pannell kept quiet about the birth until she confessed to the parish priest.

Angus Campbell was undaunted by the rebuttal of his plea and responded by insisting the publicising of the Act was a necessary part of its enactment. He quoted chapter and verse, finishing with: "....it would appear that His Majestie and the Privy Council who can releeve laws and are the last interpretor of the laws found it alwayes necessary that the said Act of Parliament lybelled on should be duely published in the terms thereof". He also insisted that "the whole space" meant the usually accepted time of nine months. It was impossible for the foetus to have lived, a fact confirmed by the surgeon and midwife. The pannell did not feel the foetus move until it came to the birth when she called for assistance as best she could considering the degree of pain she was feeling.

It was contended for the pannell that she could not be found guilty of the crime libelled upon her judicial confession because of the points raised in her defence. The jury found that Mary McIver had brought forth a child wanting any signs of life and that she had called for assistance. They also found it proven that she gave birth fifteen weeks ahead of time, a decision which immediately removed the possibility of a death sentence. She was, however, sentenced to be whipped through the burgh of Campbeltown and on the next mercat day thereafter to stand for two hours in the jougs. The latter was a hinged iron collar chained to a wall or post.

Although such draconian measures are long gone, spending time in prison can still be a traumatic and terrifying experience. Such an act of desperation as terminating the life of a baby is often committed because of the pressures of poverty, dysfunctional families, ignorance or honour. In some communities violence and even murder is not unknown as a penalty for the woman who has become pregnant outside marriage. One thing is certain. No matter what period of time we may think of, the other partner in the act of pregnancy gets off scot-free.


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