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“A Fine Mixture of Pity and Justice:” The Criminal Justice Response to Infanticide in Ireland, 1922–1949

Abstract

MH, a domestic cook who was 26 years of age, was charged with murdering her newborn infant in September 1931. MH had been “seeing a boy” who, she stated, “took advantage” of her on one occasion, procuring her consent to sexual intercourse by a promise of marriage. She claimed that she only realized she was pregnant during the later months of her pregnancy, but did not inform the father of her child. Her employer, suspecting that MH was pregnant, enquired on several occasions whether she could do anything to help, but MH did not admit her “condition.” Although her employer was aware that MH had no family or home to go to, she gave MH notice to quit her job. A couple of weeks later, MH gave birth in her bedroom at her employer's home; she did not call out for assistance or disturb the girl with whom she shared the bedroom. MH admitted in her statement that the baby cried after birth and that she “tied a white dress belt … around its neck to kill it,” adding: “I tied it [the belt] tight. I killed the child and I know I killed it.” Afterwards, MH put the body in a suitcase, cleaned up the bloodstains, and returned to work. The suspicions of her employer eventually lead to the discovery of the dead infant. The postmortem examination showed that the infant had been born alive, but had received no attention at birth; death was the result of strangulation. MH was acquitted of murder at the Central Criminal Court.

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kbrennan@essex.ac.uk
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1. The National Archives of Ireland (hereafter NAI): State File Central Criminal Court (hereafter SFCCC), IC-94-66, Co. Meath, November 17, 1931; State Book Central Criminal Court (hereafter SBCCC), ID-33-68, Co. Meath, November 17, 1931.

2. The Anglo-Irish Treaty of 1921, an agreement that brought to an end the War of Independence fought between Irish republican forces and the British Empire, led to the partition of Ireland and the establishment of the twenty-six-county Irish Free State, an autonomous self-governing dominion within the British Empire; the remaining six counties (Northern Ireland) remained part of the United Kingdom of Great Britain and Northern Ireland. The Republic of Ireland Act 1948 declared full independence from the British Empire for the Irish Free State, and the Republic of Ireland was officially established in April 1949 (Republic of Ireland Act [Commencement Order] 1949); this was recognized by Britain in the Ireland Act 1949. See Lyons Francis S. L., Ireland Since the Famine, 2nd ed. (London: Fontana, 1973), 421570. References to “Ireland” in this article are to the Irish Free State, or, from April 18, 1949 onwards, the Republic of Ireland. The English Infanticide Act of 1938 was introduced in Northern Ireland in 1939: see Infanticide Act (Northern Ireland), 1939.

3. Although obliged to pass a death sentence on a murder conviction, judges could recommend mercy. Prior to the enactment of 1937 Constitution (Bunracht na hÉireann), power to commute death sentences was vested in the governor general, the King's representative in Ireland, who acted on the advice of the Irish government (known as the Executive Council). After 1937, these powers were vested in the president of Ireland, acting on the government's advice: Bunracht na hÉireann, Art 13.9. See O'Brien Gerard, “Capital Punishment in Ireland, 1922–1964,” in Reflections on Law and History: Irish Legal History Society Discourses and Other Papers, 2000–2005, ed. Dawson Norma (Dublin: Four Courts Press in association with the Irish Legal History Society, 2006), 227–28, 236.

4. An infanticide act was first enacted in England and Wales in 1922; this was amended in 1938. See Infanticide Act 1922 (12 & 13 Geo. V, cap. 18); Infanticide Act 1938, (1 & 2 Geo. VI, cap. 36).

5. The statute provided, in s. 1(3), that infanticide would be punished as for manslaughter. This has been amended by the Criminal Law (Insanity) Act 2006, s. 22(b), and now provides that a woman convicted of infanticide “may be dealt with … as if she had been found guilty of manslaughter on the grounds of diminished responsibility.” This amendment had no impact on the range of sentencing options available; those found guilty of manslaughter by reason of diminished responsibility are subject to the same punishment options as those convicted of manslaughter: see Kennefick Louise, “Diminished Responsibility in Ireland: Historical Reflections on the Doctrine and Present-Day Analysis of the Law,” Northern Ireland Legal Quarterly 62 (2011): 287.

6. Infanticide Act 1949, s. 1(1) and 1(2).

7. Infanticide Act, 1949, s. 1(1), which provides: “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 twelve months, the Justice may, if he thinks proper, alter the charge to one of infanticide and send her forward for trial on that charge.”

8. Ibid. The District Court is the lowest court of criminal jurisdiction and is largely concerned with summary matters: see Courts of Justice Act, 1924, s. 77. Until recently, it also played a filtering role in determining whether an indictable case could proceed to trial. At a preliminary examination, the accused would only be sent for trial to the relevant court of jurisdiction if the district judge determined that the prosecution had evidence upon which a jury could reasonably convict. See Walsh Dermot: Criminal Procedure (Dublin: Thomson Round Hall, 2002), 677–78.

9. The 1949 infanticide legislation provided, in s. 1(3), that a woman tried for/convicted of infanticide would be “tried and punished as for manslaughter,” which meant that those sent for trial for infanticide would be dealt with at the Circuit Criminal Court, not the Central Criminal Court. The Circuit Criminal Court has jurisdiction over manslaughter and all but the most serious criminal offenses. The Central Criminal Court has jurisdiction over all indictable offenses and exclusive jurisdiction over certain offenses, including murder, rape, and treason. See Courts of Justice Act, 1924, s. 49; Courts of Justice Act, 1926, s. 4. See also Walsh, Criminal Procedure, 46–59.

10. The accused can be convicted by a jury of infanticide as an alternative to a murder conviction at trial: Infanticide Act 1949, s. 1(2).

11. Infanticide is defined, in s. 1(3), as follows: “A woman shall be guilty of felony, namely, infanticide if –– (a) by any wilful act or omission she causes the death of her child, being a child under the age of 12 months, and (b) the circumstances are such that, but for this section, the act or omission would have amounted to murder, and (c) at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child… .” The reference to “the effect of lactation consequent upon the birth of the child” has since been replaced with a reference to “a mental disorder (within the meaning of the Criminal Law [Insanity] Act 2006) consequent upon the birth of the child:” see Criminal Law (Insanity) Act 2006, s. 22(a).

12. Infanticide Act 1938, (1 & 2 Geo. VI, cap. 36).

13. Similar infanticide provisions have been enacted in Canada (Criminal Code, s. 233 [R.S., c. C-34, s. 216]); Hong Kong (Cap. 212, Offenses Against the Person Ordinance, s. 47C); Fiji (Penal Code [Cap. 17], s. 205.); New Zealand (Crimes Act, 1961, s. 178); and in Australian jurisdictions including New South Wales (Crimes Act 1900 [NSW], s. 22A), and Victoria (Crimes Act, 1958 [Vic.], s. 6, as amended by the Crimes [Homicide] Act, 2005 [Vic.], s. 5).

14. “Infanticide” will be used throughout this piece to reflect the current legal definition of the term, that is, to denote cases of maternal infant murder, in which the victim is under 12 months of age.

15. Ward Tony, “The Sad Subject of Infanticide: Law, Medicine and Child Murder 1860–1938,” Social and Legal Studies 8 (1999): 163–80; and Kramar Kirsten J.: Unwilling Mothers, Unwanted Babies: Infanticide in Canada (Vancouver: UBC Press, 2005).

16. See, generally, Davies David Seaborne, “Child Killing in English Law,” in The Modern Approach to Criminal Law, ed. Radzinowicz Leon and Turner James W.C. (London: Macmillan & Co, 1945), 315–22.

17. Ibid., 317–18, 320–22, referring to the evidence of witnesses before the 1866 Royal Commission on Capital Punishment, hereafter the 1866 Commission. See Royal Commission on Capital Punishment, British Parliamentary Papers, 1866, vol. 21: hereafter BPP, 1866, vol. 21.

18. See, generally, Rose Lionel: Massacre of the Innocents: Infanticide in Britain 1800–1939 (London: Routledge & Kegan Paul, 1986), ch. 8; and Davies, “Child Killing in English Law,” 303–22. See also Higginbotham Ann R., ““Sin of the Age:” Infanticide and Illegitimacy in Victorian London,” Victorian Studies 32 (1989): 319–37.

19. Davies, “Child Killing in English Law,” 317; and Rose, Massacre of the Innocents, 76.

20. Davies, “Child Killing in English Law,” 319–20. A number of witnesses before the 1866 Commission commented on this issue: for example, see BPP, 1866, vol. 21, 242–46 (per Sir Grey Bart, the home secretary); 327 (per the Right Honourable Sir J.S. Willes). Page numbers cited refer to the page number of the entire volume, rather than the individual paper, report, or document.

21. BPP, 1866, vol. 21, 475.

22. Coke Edward, Third Part of the Institutes of the Laws of England concerning High Treason, and Other Pleas of the Crown, and Criminal Causes (London: E. & R. Brooke, 1797), 47 (hereafter 3 Inst.). See also Davies, “Child Killing in English Law,” 303–07.

23. In 1624, the common law presumption of dead birth for murder cases involving newborn illegitimate infants was reversed in the “Act to prevent the destroying and murthering of bastard children.” See 21 Jac. I, cap. 27. Lord Ellenborough's Act of 1803 reinstated the presumption of dead birth for all infant murder trials; 43 Geo. III, cap. 58, s. 3 & 4. See Davies, “Child Killing in English Law,” 312–13.

24. 3 Inst., 50. Davies, “Child Killing in English Law,” 307–11.

25. See, generally, Atkinson Stanley B., “Life, Birth and Live-Birth,” Law Quarterly Review 20 (1904): 134–59; Davies, “Child Killing in English Law,” 303–10; and Rose, Massacre of the Innocents, 71–73. See also Kenny Courtney: Outlines of Criminal Law, 5th ed. (Cambridge: Cambridge University Press, 1911), 128–29; Williams Glanville L.: The Sanctity of Life and the Criminal Law (London: Faber & Faber, 1958), 1923; and Casey Gerard: Born Alive: The Legal Status of the Unborn Child in England and the U.S.A. (Chichester: Barry Rose Law Publishers, 2005), 1219.

26. Davies, “Child Killing in English Law,” 310, 316–19; and Rose, Massacre of the Innocents, 74. The live-birth problem was highlighted by a number of those who gave evidence to the 1866 Commission: see for example, BPP, 1866, vol. 21, 101 (Lord Wenslydale); 74–75 (Sir G. Bramwell); and 56 (Lord Cranworth). See also Ryan William Burke, Infanticide: Its Law, Prevalence, Prevention and History (London: J. Churchill, 1862), 6.

27. See Davies, “Child Killing in English Law,” 312; Higginbotham, “Infanticide and Illegitimacy in Victorian London,” esp. at 331–32. During the nineteenth century, this offense was governed by the following statutes: 43 Geo. III, cap. 58, s. 3; the Offenses against the Person Act, 1828, s. 14 (9 Geo. IV, cap. 31); and Offenses against the Person Act 1861, s. 60 (24 & 25 Vic., cap. 100).

28. The most recent incarnation of this offense is in the Offenses Against the Person Act 1861, s. 60 (24 & 25 Vic., cap. 100), which provides: “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, endeavor to conceal the birth thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years.”

29. See Davies, “Child Killing in English Law,” 312; Higginbotham, “Infanticide and Illegitimacy in Victorian London,” 331–32; and Sauer R., “Infanticide and Abortion in Nineteenth Century Britain,” Population Studies 32 (1978): 82. See also Emmerichs Mary Beth Wasserlein, “Trials of Women for Homicide in Nineteenth-Century England,” Women and Criminal Justice 5 (1993): 99109.

30. Rapaport Elizabeth, “Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth,” Fordham Urban Law Journal 33 (2006): 549–54.

31. Davies, “Child Killing in English Law,” 320–21.

32. See generally: Zedner Lucia, Women, Crime and Custody in Victorian England (Oxford: Clarendon Press, 1991), 1118; Henriques U. R. Q., “Bastardy and the New Poor Law,” Past and Present 37(1967): 103–29; Davies, “Child Killing in English Law,” 320–21.

33. Davies, “Child Killing in English Law,” 320–21.

34. BPP, 1866, vol. 21, 343.

35. 12 & 13 Geo. V, cap. 18. See generally, Davies, “Child Killing in English Law,” 315–35.

36. Infanticide Act 1922, s. 1(1) (12 & 13 Geo. V, cap. 18); and Offenses Against the Person Act 1861, s. 5 (24 & 25 Vic., cap. 100) which provides for the punishment for manslaughter.

37. Davies, “Child Killing in English Law,” 319–20, claims that judicial agitation over the “solemn mockery” was key in bringing about this reform.

38. Ward, “The Sad Subject of Infanticide,” 176, emphasis in original. Insanity verdicts were rare in cases involving unmarried women, Ibid., 166.

39. Ibid., 176.

40. See generally, Kramar, Infanticide in Canada, chs. 1–3. For an account of the nineteenth-century response to infanticide in Canada, which indicates that there was much sympathy for these offenders, see Backhouse Constance, “Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada,” University of Toronto Law Journal 34 (1984): 447–78.

41. Kramar, Infanticide in Canada, 66–71, 90–93.

42. Ibid., 20–21, 27–39, 53–71.

43. Ibid.

44. Ibid., 69, 90–92.

45. I found no evidence in the court and government records consulted to suggest that sentencing of women convicted of noncapital offenses connected with infanticide was a consideration in the 1949 reform. Therefore, apart from a very brief reference later in the article to sentencing in these cases, this matter is not explored in this study.

46. NAI, SBCCC, IC-88-59 (October 1924–April 1925, Dublin City); IC-88-61 (June 1925–December 1926, Change of Venue Cases Dublin); IC-88-60 (June 1925–June 1927, Dublin), ID-33–68 (November 1927–June 1933); ID-24-129 (February 1928–November 1943, City of Dublin); ID-11-92 (November 1933–April 1941), ID-27-1 (October 1941–December 1945), V15-4-15 (February 1946–December 1952). These records are also referred to as “Trial Record Books.”

47. It was possible to identify cases involving infants in which the victim was described in the particulars of the offense as being an “infant” or an “unnamed” child, “newly-born”, “recently delivered” or “recently born.” Where the particulars stated that the victim was a child, but no other information was available on the record to indicate that the victim was an infant, that is, a child less than 1 year of age, the case was excluded.

48. This figure is restricted to cases involving murder indictments; cases in which persons were charged with manslaughter or concealment of birth, but where no one was charged with murdering the infant, have been excluded. Where it was not possible to positively conclude from the information in the SBCCC that the victim was an infant (see note 47 above), the case was excluded, except in one case in which the fact that the victim was an infant was ascertained from another source consulted during the course of this research (this is the case of EE and RE which is discussed below). There are undoubtedly other cases of infant murder in the SBCCC that have been omitted from this sample because of the limited information provided on the SBCCC record. Further, the SBCCC does not appear to provide a complete record of cases for the period. Two cases, both involving murder convictions, found in another archival source consulted, are not mentioned in the SBCCC records examined; see note 94 below. The first infant murder case recorded in the SBCCC is in 1926; there are no recorded cases for the years 1924 and 1925. For the period 1922–1950, Rattigan identified 191 cases of infanticide, involving mothers and other individuals: see Rattigan Clíona: “What Else Could I Do?” Single Mothers and Infanticide, Ireland 1900–1950 (Dublin: Irish Academic Press, 2012).

49. It was not possible to ascertain the relationship between the perpetrator and the victim in eleven of the remaining twenty-one cases. A number of these cases may have involved mothers. This sample only includes women who were charged with murder.

50. Also see Rattigan, What Else Could I Do? 22–25, on the limitations of these sources as a means of tracing the social history of this crime, and, in particular, the experiences of the women involved.

51. Overall, twenty-three case files, found either in the Department of Taoiseach file on commuting the death sentence (hereafter DT[CDS]), the Court of Criminal Appeal file (hereafter CCA), or the SFCCC, were consulted in this study, although not all of these cases are referred to in the following analysis. These cases are used for illustrative purposes only; it would not be possible to draw definitive conclusions about the nature of the phenomenon of infanticide or the criminal justice response to this crime from the small number of cases sampled in this study.

52. NAI, Department of Justice files (infanticide) 8/144/1; 8/144/A, H266/61. Hereafter DJ 8/144/1; DJ 8/144/A; DJ H266/61.

53. NAI, Attorney General Office files (infanticide) 2000/10/2921; 2000/10/2922. Hereafter AG 2000/10/2921; AG 2000/10/2922.

54. NAI, Department of Taoiseach file (infanticide) s14493 (hereafter DT s14493); Department of Taoiseach file (capital punishment) s7788A, (hereafter DT s7788A).

55. For a thorough analysis of infanticide in the Irish Free State, see Rattigan, What Else Could I Do? See also, Guilbride Alexis, “Infanticide: The Crime of Motherhood,” in Motherhood in Ireland: Creation and Context, ed. Kennedy Patricia (Cork: Mercier Press, 2004), 170–80; Ryan Louise: Gender, Identity and the Irish Press, 1922–1937: Embodying the Nation (Lewiston, New York: Edwin Mellen Press, 2002), ch. 6; Ryan Louise, “The Press, Police and Prosecution: Perspectives on Infanticide in the 1920s,” in Irish Women's History, ed. Hayes Alan and Urquhart Diane (Dublin: Irish Academic Press, 2004), 137–51; and Rattigan Clíona, “‘Dark Spots’ in Irish Society: Unmarried Mothers and Infanticide in Ireland from 1926 to 1938,” in Single Motherhood in Twentieth Century Ireland: Cultural, Historical and Social Essays, ed. Ramblado-Minero Maria C. and Pérez-Vides Auxiliadora (Lewiston, New York: Edwin Mellen Press, 2006), 83102.

56. See, generally, Rattigan, What Else Could I Do? chs. 1 & 2; Rattigan Clíona, ““Done to Death by Father or Relatives:’ Irish Families and Infanticide Cases, 1922–1950,” The History of the Family 13 (2008): 370–83; and Ryan, Gender, Identity and the Irish Press, 253, 286.

57. For a detailed profile of women charged with murder/concealment of birth in the Irish Free State, see: Rattigan, What Else Could I Do? ch. 1, esp. at 38–58. See also Ryan, “Perspectives on Infanticide,” 141–42, 145; Guilbride, “Infanticide,” 173.

58. See Rattigan, What Else Could I Do? ch. 1.

59. NAI, SFCCC ID-29–7, Co. Kilkenny, October 12, 1948.

60. Ibid., “Extract from Medical Officer's Report,” dated September 17, 1948.

61. NAI, SBCCC V15-4–15, Co. Kilkenny, October 12, 1948.

62. For example, see NAI, CCA 1930/24 & DT [CDS] s6096 (CR); CCA 1935/13 & DT [CDS] s7777 (EE); DT [CDS] s5884 (MAK); DT [CDS] s5195 (MK). See also Ryan, “Perspectives on Infanticide,” 141.

63. NAI, DT [CDS] s7777; CCA 1935/13 &14.

64. NAI, DT s7788(a), “Return of Persons Sentenced to Death,” 1932–37.

65. NAI, SFCCC ID-29–8, Co. Limerick, February 17, 1948.

66. Ibid., JO's statement, October 22, 1947.

67. NAI, SBCCC V15-4–15, Co. Limerick, February 17, 1948.

68. Two similar cases (EK and BC) are discussed below.

69. The local community, as well as the Gardaí (police), kept unmarried women under particular surveillance. This played an important role in bringing to light suspected infanticides. See Rattigan Clíona, “‘I Thought from Her Appearance That She Was in the Family Way:’ Detecting Infanticide Cases in Ireland, 1900–1921,” Family and Community History 11 (2008): 134–51; Rattigan, What Else Could I Do? ch 4; Rattigan, “Unmarried Mothers and Infanticide in Ireland,” 95–96; and Ryan, “Perspectives on Infanticide in the 1920s,” 145.

70. See, generally, Lee Joseph J., “Women and the Church since the Famine,” in Women in Irish Society: The Historical Dimension, ed. MacCurtain Margaret and Corráin Donncha Ó (Dublin: Arlen House, 1978), 3745; and Rhodes Rita M.: Women and Family in Post Famine Ireland: Status and Opportunity in a Patriarchal Society (New York & London: Garland, 1992), esp. ch. 3.

71. See, generally, Guilbride, “Infanticide,” 171–72; Luddy Maria, “Sex and the Single Girl in 1920s and 1930s Ireland,” Irish Review 35 (2007): 7991; Luddy Maria: Prostitution and Irish Society (New York: Cambridge University Press, 2007), 194–97, 200–3; Ryan, Gender, Identity and the Irish Press, 257–60; Ryan Louise, “Irish Newspaper Representations of Women, Migration and Pregnancy outside Marriage in the 1930s,” in Single Motherhood in Twentieth Century Ireland: Cultural, Historical and Social Essays, ed. Ramblado–Minero Maria C. and Pérez–Vides Auxiliadora (Lewiston, New York: Edwin Mellen Press, 2006), 105–6; Valiulis Mary-Anne, “Neither Feminist nor Flapper: the Ecclesiastical Construction of the Ideal Irish Woman,” in Chattel, Servant or Citizen: Women's Status in Church, State and Society, ed. O'Dowd Mary and Wichert Sabine (Queen's University Belfast: Institute of Irish Students, 1995), 168–78; Martin Angela K., “Death of a Nation: Transnationalism, Bodies and Abortion in Late Twentieth-Century Ireland,” in Gender Ironies of Nationalism: Sexing the Nation, ed. Mayer Tamar (London: Routledge, 2000), 6667; Hug Chrystel, The Politics of Sexual Morality in Ireland (Basingstoke: Macmillan/New York: St Martin's Press, 1999), 7784; and Ryan Louise, “‘A Decent Girl Well Worth Helping:’ Women, Migration and Unwanted Pregnancy,” in Ireland Beyond Boundaries: Mapping Irish Studies in the Twenty-First Century, ed. Harte Liam and Whelan Yvonne (London: Pluto Press, 2007), 142–44.

72. See, generally, the literature cited in note 71 above. See also Earner-Byrne Lindsey, Mother and Child: Maternity and Child Welfare in Dublin, 1922–1960 (Manchester: Manchester University Press, 2007), ch. 7.

73. See Ryan, “Irish Newspaper Representations of Women,” 116–17; Ryan, “Women, Migration and Unwanted Pregnancy,” 144; and Guilbride, “Infanticide,” 176–77.

74. See McAvoy Sandra, “The Regulation of Sexuality in the Irish Free State, 1929–1935,” in Medicine, Disease and the State in Ireland, 1650–1940, ed. Jones Greta and Malcolm Elizabeth (Cork: Cork University Press, 1999), 260; and Guilbride, “Infanticide,” 173. Similar difficulties have been noted about affiliation proceedings in Britain following the enactment of the Poor Law Amendment Act 1844 (7 & 8 Vic., cap. 101): see Rose, Massacre of the Innocents, 28–30; and Henriques, “Bastardy and the New Poor Law,” 119.

75. Inglis Tom, Moral Monopoly: The Rise and Fall of the Catholic Church in Modern Ireland (Dublin: University College Dublin Press, 1998), 230. He notes that prior to the legalisation of adoption in Ireland, congregations of nuns organized the adoption of Irish babies by American Catholics. Informal adoptions were arranged within some families: Ryan, “Irish Newspaper Representations of Women,” 107.

76. See generally, Ryan, “Irish Newspaper Representations of Women,” 109–18; Ryan, “Women, Migration and Unwanted Pregnancy,” esp. at 142–50; and Guilbride, “Infanticide,” 178.

77. See Conway Eileen, “Motherhood Interrupted: Adoption in Ireland,” in Motherhood in Ireland: Creation and Context, ed. Kennedy Patricia (Cork: Mercier Press, 2004), 184.

78. See, generally, Earner–Byrne, Maternity and Child Welfare in Dublin, 1922–1960, 180–90; Luddy, Prostitution and Irish Society, 117–23, 201–3, 235–37; Luddy, “Sex and the Single Girl,” 83–85, 89; Ryan, “Irish Newspaper Representations of Women,” 107; and Conway, “Motherhood Interrupted,” 182–83.

79. See Earner–Byrne, Maternity and Child Welfare in Dublin, 187–89; and Luddy, Prostitution and Irish Society, 119–23, 202–3.

80. Alexis Guilbride, I Went Away in Silence: A Study of Infanticide in Ireland from 1925–1957 (MA Thesis, University College Dublin, Women's Education Research and Resource Centre, 1995), 45.

81. Earner–Byrne, Maternity and Child Welfare in Dublin, 190. The fate of illegitimate children during this period was similarly bleak: the mortality rate among illegitimate infants was high, with one in three children born outside of wedlock not living beyond their first year (McAvoy, “The Regulation of Sexuality in the Irish Free State,” 260). Many of those who survived infancy faced an unhappy future in institutional/non-institutional care; see Maguire Moira J., Precarious Childhood in Post-Independence Ireland (Manchester: Manchester University Press, 2009), chs. 2 and 3.

82. Guilbride, “Infanticide,” 172.

83. As in England, murder was a common law offense, defined by Coke as the unlawful killing of a “reasonable creature in rerum natura” with malice aforethought: 3 Inst. 47. During the period under review, the meaning of malice aforethought was not clearly settled, although it was generally thought to cover intentional and some forms of reckless killing, at least where the defendant had foreseen death as a probable consequence of their intentional conduct, or where the defendant had committed a violent felony with foresight that death might result; see McAuley Finbarr, and McCutcheon Paul, Criminal Liability: A Grammar (Dublin: Round Hall, Sweet and Maxwell, 2000), 290–93. Manslaughter, punishable by a maximum of penal servitude for life, was an unlawful killing without malice aforethought.

84. NAI, DT s14493, DJ memorandum, dated January 4, 1944, and memorandum dated February 10, 1949. See also minister for justice's speech when introducing the Infanticide Bill to Parliament; Parliamentary Debates, vol. 115, col. 265, April 28, 1949 (Dáil Éireann); hereafter Dáil Debates.

85. Rose, Massacre of the Innocents, 76.

86. It seems that the practice of commuting the death sentence for infanticide was established in the mid-nineteenth century; see Prior Pauline, Madness and Murder: Gender, Crime and Mental Disorder in Nineteenth-Century Ireland (Dublin: Irish Academic Press, 2008), 132–33.

87. NAI, DT s7788(a), “Return of Persons Sentenced to Death,” 1922–32 and 1932–37.

88. One woman, MAK, was living apart from her husband at the time of the birth (NAI, DT [CDS] s5884). Another woman, CA, was pregnant at the time of marriage and continued to live with her parents afterwards (NAI, DT [CDS] s5891). Finally, one woman, ED, was recorded in her file as “Mrs”, but the whereabouts of her husband and the circumstances of her pregnancy are unclear from the information provided; see NAI, SFCCC IC-90–28, Co. Wicklow, June 2, 1926.

89. For more detail on these cases, see NAI, DT [CDS] s5195 (MK); s5571 (EH); s5884 (MAK); s5886 (DS); s5891 (CA); s6129 (MF); s6096 (CR); and s7777 (EE and RE). See also NAI, SFCCC IC-90–28, Co. Wicklow, June 2, 1926 (ED). ED was the only woman not released into the community; she was sent to Dundrum Asylum soon after conviction.

90. O'Brien, “Capital Punishment in Ireland,” 229.

91. NAI, SBCCC ID-27–1, Co. Westmeath, November 15, 1943.

92. NAI, SFCCC ID-22–84, Co. Westmeath, November 15, 1943, Statements of KO dated May 8, 1943.

93. NAI, SBCCC ID-27–1, Co. Westmeath, November 15, 1943. The SBCCC does not indicate whether a reprieve was granted, but presumably the sentence was commuted.

94. This is based on evidence in the SBCCC and in the “Returns of Persons Sentenced to Death.” Two cases found in the Returns are not listed in the SBCCC. There may be other cases not accounted for in either of these records. I came across one other case in which a murder conviction was returned, but this was quashed on appeal, and the woman pleaded guilty to manslaughter at retrial. This case is not counted as a murder conviction for the purposes of this study: EK (1944), discussed below.

95. Only eight of the ten murder convictions identified are listed in the SBCCC (see note 94 above).

96. Central Statistics Office, Annual Abstracts 1927–1949. Concealment of birth was governed by the Offenses Against the Person Act 1861, s. 60 (24 & 25 Vic., cap. 100); see note 28 above. The CSO records 135 murders of infants aged under 1 year of age for the same period.

97. NAI, DJ 8/144/1, memorandum dated February, 1949.

98. This figure excludes cases in which the women pleaded guilty to a lesser offense either during trial or after the jury had failed to reach a verdict. These cases were ultimately disposed of on the basis of a guilty plea and are counted as such. I identified seven such cases, although the records are sometimes unclear, and other women may have gone through a full or partial trial before tendering their plea. This figure also excludes the only case in which a woman (EK, 1944) was convicted by a jury but had that conviction quashed on appeal and pleaded guilty at a second trial; this case is also counted as being disposed of by a guilty plea.

99. See notes 94, 95 above. The two cases found on the “Return of Persons Sentenced to Death” that are not listed in the SBCCC are excluded from this calculation.

100. In addition to this case, only one other insanity finding for maternal infanticide was identified in the records examined; in that case, the woman was found insane and unfit to plead. There is one other case of child murder, involving the murder of two children, in the SBCCC, in which an insanity verdict was returned (NAI, SBCCC ID-33-68, KM, Westmeath, February 18, 1930). The record does not state whether the accused was the mother of the two victims, or whether the victims were less than 1 year of age; this case has been excluded from this sample. Evidence from memoranda sent to the Office of the Attorney General in the 1940s, which are discussed below, suggest that there may have been other cases involving insanity verdicts against women accused of killing their infants, which I was unable to identify from the information provided in the SBCCC. Studies of female admissions to the Central Mental Hospital for this period also suggest there may have been a small number of other cases in which women were found insane on a charge of murdering their infants. See Mulryan Niamh, Gibbons Pat, and O'Connor Art, “Infanticide and Child Murder––Admissions to the Central Mental Hospital 1850–2000,” Irish Journal of Psychological Medicine 19 (2002): 812; and Kelly Brendan D., “Poverty, Crime and Mental Illness: Female Forensic Psychiatric Committal in Ireland, 1910–1948,” Social History of Medicine 21 (2008): 311–28. It appears, however, that, overall, insanity was rarely found in infanticide cases during this period.

101. Offenses Against the Person Act 1861, ss. 5 & 60 (24 & 25 Vic., cap. 100). Five women were convicted of manslaughter, and five were convicted of concealment of birth. In other one case, counted as an acquittal, the accused had been convicted of manslaughter, but this was later quashed and at a retrial she was found not guilty; see BC (1934), discussed below.

102. In one of these cases, the charge was amended by the judge to one of manslaughter, to which the accused pleaded guilty. In the remaining cases, the woman pleaded guilty to manslaughter on a murder indictment.

103. In seven of these cases, the woman had been indicted for both murder and concealment of birth. The prosecution entered a nolle prosequi on the murder indictment in six; in the remaining case, the woman was not arraigned on the murder charge. In the remaining forty cases, the accused pleaded guilty to concealment of birth on a murder indictment.

104. Children's Act 1908, s. 12 (8 Edw. VII, cap. 67).

105. See note 98 above.

106. In both cases, another individual was held criminally accountable.

107. The four defendants were disposed of on the basis of a jury verdict as follows: two were acquitted; one was found insane; and one was convicted of murder (KO, 1943, discussed above).

108. EK (1944), discussed below. This is counted as a guilty plea.

109. NAI, AG 2000/10/2921 and 2000/10/2922, memoranda dated March 22, 1941; May 29, 1945; May 13, 1947; and November 21, 1947. See also memoranda dated August 1, 1944, which provides details of disposals of thirty-six murder charges, most involving infanticide, between 1941 and August 1944; NAI, AG 2000/10/2921.

110. Although not all of the cases referred to involved mothers, presumably most did.

111. The offender in this case was the victim's maternal grandmother; NAI, DT [CDS] s11040; and CCA 1938/36.

112. See note 100 above.

113. EK (1944), discussed below.

114. NAI, AG 2000/10/2921, memorandum dated March 22, 1941.

115. Although women were not prohibited from sitting on juries, they were exempt from jury service and had to apply to be included; Juries Act 1927, s. 3. Further, restrictions on eligibility for jury service, including certain property requirements, acted as a barrier to many women. The constitutionality of these provisions in the 1927 Act was successfully challenged in de Burca & Anderson v. Attorney General [1976] IR 38. See Quinn Katie, “Jury Trial in the Republic of Ireland,” Reveu Internationale de Droit Pénal 72 (2001): 197.

116. Kramar, Infanticide in Canada, ch. 2, esp. at 54, 65–66; Higginbotham, “Infanticide and Illegitimacy in Victorian London,” 329. It was noted in one document connected with the Irish infanticide reform that juries “on the slightest excuse” acquitted infanticide offenders of murder. See NAI, AG 2000/10/2921, memorandum dated March 28, 1941.

117. NAI, DT [CDS] s5886.

118. NAI, DT [CDS] s6129 (MF).

119. See Kramar, Infanticide in Canada, 66.

120. See note 69 above.

121. See, generally, Ryan, Gender, Identity and the Irish Press, 272–76; and “Perspectives on Infanticide,” 145–49.

122. Four women in this sample appealed their convictions. See NAI: CCA 1930/24 (CR); CCA 1934/31 (BC); CCA 1935/13&14 (EE & RE); and CCA 1944/56 (EK). Three of these cases are discussed in this section.

123. NAI, CCA 1935/13 and 14, Trial Transcript, “Judge's Charge to the Jury.”

124. O'Byrne J presided over five other infanticide trials that resulted in a conviction. He agreed with the jury's recommendation of mercy in each case. See NAI, DT s7788(a), “Returns of Persons Sentenced to Death,” 1922–31, 1932–37.

125. NAI, CCA 1944/56.

126. Ibid., Trial Transcript, “Judge's Charge to the Jury.”

127. Ibid.

128. NAI, SBCCC ID–27–1, Co. Westmeath, April 18, 1944. JM was also charged with murder, but tried separately. The jury could not agree on a verdict, and he was acquitted at a retrial.

129. NAI, SBCCC ID-27–1, Co. Westmeath, October 11, 1944.

130. NAI, CCA 1934/31.

131. Ibid., BC's statement, dated March 27, 1934.

132. See NAI, CCA 1934/31, Trial Transcript. See also her deposition dated April 7, 1934.

133. Ibid., Trial Transcript.

134. Ibid., Trial Transcript, “Judge's Charge to the Jury.”

135. For brief discussion, see below.

136. NAI, CCA 1944/56, Trial Transcript, “Judge's Charge to the Jury.”

137. NAI, CCA 1934/31, Trial Transcript, “Judge's Charge to the Jury.”

138. NAI, SBCCC ID-11-92, Co. Monaghan, June 11 and November 19, 1934.

139. NAI, DT [CDS] s5886.

140. It is not clear from the records consulted whether the trial judge agreed with the recommendation for mercy in the case of KO (1943).

141. O'Brien, “Capital Punishment in Ireland,” 229.

142. O'Sullivan CJ chaired the committee.

143. NAI, DT s14493, “Report of the Committee appointed to Consider and Report on the Law and Practice Relating to Capital Punishment,” para. 1. Hereafter O'Sullivan Committee Report.

144. Ibid. para. 3.

145. The attorney general decided whether to prosecute, and what charges to prefer; the actual prosecution was undertaken by lawyers (barristers) in private practice, employed by the state on a contractual basis to conduct individual prosecutions. These barristers were instructed, in the case of trials taking place within Dublin, by the chief state solicitor, a civil servant, who was in turn instructed by the attorney general. See, generally, Walsh, Criminal Procedure, 583–604. References to the prosecution/prosecutors are to the attorney general, the chief state solicitor, and their staff, and the individual barristers hired to conduct the prosecution.

146. Kramar, Infanticide in Canada, 66. See text below, for evidence suggesting that this was the case for Irish prosecutors.

147. NAI, DJ 8/144/1, memorandum addressed “Minister”, dated February, 1949.

148. Although it was for the prosecution to decide whether or not to accept a plea, the judge may have had the authority to overrule the decision in certain cases; see Walsh, Criminal Procedure, 797, referring to R v. Soanes (1948) 1 All ER 289. Further, if a plea bargain was involved, the judge may have played an even greater role. It seems the current practice is that if an accused offers to plead guilty to an offense that was not an alternative charge on the indictment, the authority to accept the plea vests in the judge who takes the prosecution's opinion into account; Walsh, Criminal Procedure, 804.

149. It is not clear either whether these pleas were offered as part of a plea bargain. If they were, it may, as is currently the practice, have been improper for the prosecution to initiate the process through an offer to the defense; Walsh, Criminal Procedure, 804.

150. Rattigan, What Else Could I Do? 45–46.

151. NAI, AG 2000/10/2921, memorandum dated March 28, 1941.

152. NAI, DJ 8/144/1, letter addressed “Minister,” dated February, 1949.

153. NAI, DJ H266/61, memoranda dated July 31, 1928 and December 13, 1932.

154. NAI, DT s14493, O'Sullivan Committee Report, para. 1. There were also calls for reform from the Office of the Attorney General which predated the O'Sullivan Committee's report; see NAI, AG 2000/10/2921, memorandum dated March 28, 1941. It seems that the government was awaiting an official recommendation from the O'Sullivan Committee before it acted on these calls for reform. For a more detailed account see Karen Brennan, “‘Traditions of English Liberal Thought:’ A History of the Enactment of an Infanticide Law in Ireland,” Irish Jurist (2013, forthcoming).

155. See various documents in NAI, s14493.

156. See Brennan, “A History of the Enactment of an Infanticide Law in Ireland.” For the second-stage reading of the bill in both houses of Parliament (the Dáil and the Seanad), see: Dáil Debates, cols. 263–83; Parliamentary Debates, vol. 36, cols. 1470–77, July 7, 1949 (Seanad Éireann) (hereafter Seanad Debates). Although some minor criticisms were made of the bill, the spirit of the proposal was broadly welcomed. Only one member of the Dáil, Maj. V. deValera, spoke out against the reform, strongly criticizing it on sanctity of infant life grounds; see Dáil Debates, cols. 275–82. For more detail see Brennan, “A History of the Enactment of an Infanticide Law in Ireland.”

157. See NAI, DT s7788(a), memorandum entitled “re trials for murder,” dated August 25, 1941, p. 3.

158. Dáil Debates, col. 265.

159. Ibid., col. 266.

160. See NAI, DJ 8/144/1, letter addressed “Minister,” dated February, 1949; and, memorandum entitled, “Infanticide Bill: Memorandum for the Government,” dated February 10, 1949.

161. Dáil Debates, col. 282.

162. Ibid., col. 273, per Sir J. Esmonde.

163. Seanad Debates, col. 1474.

164. Ibid., col. 1475, per Senator Concannon.

165. Ibid.

166. Dáil Debates, col. 269.

167. Ibid., col. 268.

168. Ibid., col. 283.

169. See NAI, DJ 8/144/1, memorandum addressed “Minister,” dated February, 1949.

170. Ibid., handwritten notes, signed R.H., dated February 28, 1949 and March 1, 1949, at end of memorandum dated February 26, 1949. For further discussion of this meeting and the likely impact on the Irish law, see Brennan, “A History of the Enactment of an Infanticide Law in Ireland.”

171. Whyte John H., Church and State in Modern Ireland 1923–1979, 2nd ed. (Dublin: Gill & Macmillan, 1980), esp. chs. 2–10; Inglis, Moral Monopoly, 77–80; and Dairmuid Ferriter, The Transformation of Ireland 1900–2000 (London: Profile Books, 2004), esp. 337–40, 408–10, 520–23.

172. See Brennan, “A History of the Enactment of an Infanticide Law in Ireland.” Three documents relating to the Infanticide Bill are found in Archbishop McQuaid's archives; two of these are referred to in this article. See Archives of Archbishop of Dublin, The McQuaid Papers, AB8/B/XVIII/10 (hereafter AAD, AB8/B/XVIII/10): memorandum entitled “Proposed Infanticide Legislation,” by Monsignor Dargan, dated February 24, 1949; and unsigned and undated memorandum entitled “Infanticide Act.” Hereafter referred to respectively as memo 1 and memo 2.

173. Brennan, “A History of the Enactment of an Infanticide Law in Ireland.” See: NAI, DJ/8/144/1, “Revised Draft of Bill,” dated March 5, 1949; and “Memo for Government,” dated March 7, 1949; DT s14493, “Government Meeting, 4th March, 1949, Cabinet item no. 6;” see also NAI, Cabinet Minutes 2/10. See also Dáil Debates, col. 266, per Gen. MacEoin.

174. AAD, AB8/B/XVIII/10, memo 1, para. 5.

175. Ibid., para. 1, 2, 4, 6, 7.

176. Ibid., para. 4.

177. Ibid., memo 2. It is possible that this document was authored by Dr. McQuaid.

178. Ibid., 1–2. It is of note that the woman's mental state is mentioned by both authors as constituting a mitigating factor in infanticide cases. For discussion of the role of popular perceptions of maternal mental disturbance in the Irish infanticide reform see: Brennan, “A History of the Enactment of an Infanticide Law in Ireland.”

179. See, generally, AAD, AD8/B/XVIII/10, memo 2, p. 2.

180. Ibid., 1.

181. For a brief discussion of sentencing, see below.

182. Dáil Debates, col. 272, per Deputy Lynch.

183. Apart from the objections raised by Maj. V. deValera in the Dáil (see note 156 above), and, possibly, the Archbishop of Dublin. However, both did seem to concede that some form of lenient provision was necessary to avoid the death penalty in relevant cases; what they disagreed with was the method proposed in the 1949 Bill. For further discussion, see Brennan, “A History of the Enactment of an Infanticide Law in Ireland.”

184. Kramar makes this point with respect to the Canadian infanticide reform.

185. Luddy, Prostitution and Irish Society, 201.

186. Ryan Breda Gray and Louise, “(Dis)locating ‘Woman’ and Women in Representations of Irish Identity,” in Women in Irish Society: A Sociological Reader, ed. Byrne Anne and Leonard Madeleine (Belfast: Beyond the Pale, 1997), 521.

187. Edwards Susan S.M.: Women on Trial: A Study of the Female Suspect, Defendant and Offender in the Criminal Law and the Criminal Justice System, (Manchester: Manchester University Press, 1984), 7985, 91–100; O'Donovan Katherine, “The Medicalisation of Infanticide,” Criminal Law Review (1984): 259–64; Zedner, Women, Crime and Custody, 83–90; and Smith Roger: Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh, Edinburgh University Press, 1981), ch. 7. For discussion of the medicalization question in the Irish context, see Brennan, “A History of the Enactment of an Infanticide Law in Ireland.”

188. See Sandra Larmour, Aspects of the State and Female Sexuality in the Irish Free State, 1922–1949 (PhD diss., University College Cork, 1998), 289. See also Ryan, Gender, Identity and the Irish Press, 275–76. See, generally, Rattigan, What Else Could I Do? 207–25.

189. For detailed discussion of sentencing in infanticide cases, and of the likely influences on sentencing practice, see Karen Brennan, “Punishing Infanticide in the Irish Free State,” Irish Journal of Legal Studies, 3(1) (2013): 1.

190. Dáil Debates, col. 270, per Deputy Moran.

191. Kramar, Infanticide in Canada, 7.

192. See Higginbotham, “Infanticide and Illegitimacy in Victorian London,” 333.

193. Heidensohn Frances: Women and Crime (London: Macmillan, 1985), ch. 3; and Morris Allison: Women, Crime and Criminal Justice (Oxford: Basil Blackwell, 1987), ch. 4.

194. Zedner, Women, Crime and Custody, 11–18.

195. BPP, 1866, vol. 21, 476 (per Rev. Ld S.G. Osborne).

196. Infanticide Act 1949, s. 1(3).

197. Brennan, “A History of the Enactment of an Infanticide Law in Ireland.”

198. Kramar, Infanticide in Canada, 5.

199. This was later increased to 5 years’ imprisonment in a 1955 amendment to the Criminal Code; see Kramar, Infanticide in Canada, 111–12.

200. Ward, “The Sad Subject of Infanticide,” 170.

201. Ibid., 176.

She thanks Shadd Maruna, Norma Dawson, Maurice Sunkin, and Elizabeth Brennan for agreeing to read earlier drafts of this manuscript, and for their helpful suggestions. She is also indebted to David Tanenhaus, Elizabeth Dale, and the four anonymous reviewers from the Law and History Review for their constructive comments. Any mistakes are entirely her own. She also expresses gratitude to the Irish Council for the Humanities and Social Sciences, which funded her PhD research, on which this article is largely based.

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Law and History Review
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