, in such
cases, it was peculiarly difficult to obtain. The jury might peruse the statute
itself, and they had also the libel and interlocutor of relevancy to direct them
in point of law. He put it to the conscience of the jury, that under both he was
entitled to a verdict of Guilty.
    The charge of Fairbrother was much cramped by his having failed in the proof
which he expected to lead. But he fought his losing cause with courage and
constancy. He ventured to arraign the severity of the statute under which the
young woman was tried. »In all other cases,« he said, »the first thing required
of the criminal prosecutor was to prove unequivocally that the crime libelled
had actually been committed, which lawyers called proving the corpus delicti.
But this statute, made doubtless with the best intentions, and under the impulse
of a just horror for the unnatural crime of infanticide, ran the risk of itself
occasioning the worst of murders, the death of an innocent person, to atone for
a supposed crime which may never have been committed by anyone. He was so far
from acknowledging the alleged probability of the child's violent death, that he
could not even allow that there was evidence of its having ever lived.«
    The King's Counsel pointed to the woman's declaration; to which the counsel
replied - »A production concocted in a moment of terror and agony, and which
approached to insanity,« he said, »his learned brother well knew was no sound
evidence against the party who emitted it. It was true, that a judicial
confession, in presence of the Justices themselves, was the strongest of all
proof, insomuch that it is said in law, that in confitentem nulloe sunt partes
judicis. But this was true of judicial confession only, by which law meant that
which is made in presence of the justices, and the sworn inquest. Of
extrajudicial confession, all authorities held with the illustrious Farinaceus
and Matthæus, confessio extrajudicialis in se nulla est; et quod nullum est, non
potest adminiculari. It was totally inept, and void of all strength and effect
from the beginning; incapable, therefore, of being bolstered up or supported,
or, according to the law phrase, adminiculated, by other presumptive
circumstances. In the present case, therefore, letting the extrajudicial
confession go, as it ought to go, for nothing,« he contended, »the prosecutor
had not made out the second quality of the statute, that a live child had been
born; and that, at least, ought to be established before presumptions were
received