The path to the Infanticide Act, 1922

Despite the inroads made by feminists and birth-control campaigners in the early decades of the twentieth century, most women in inter-war Britain had limited control over their reproductive lives, with little knowledge and access to birth-control. Although the increasing presence of contraceptives on British highstreets signalled an ‘increasing liberation of sexual attitudes’ in the aftermath of the Great War, such permissiveness was countered by a fear that the display, easy sale, and use of contraceptives might have a corrupting influence upon adolescents and the unmarried.Footnote ⁴⁰ Discourses on birth control were frequently suffused with eugenic ideas, whereby contraceptives were to be deployed not only for the benefit of the individual but for the nation as a whole. Jane Carey’s work has shown that the movement in inter-war Britain, the United States, and Australia, was deeply concerned with the ‘fitness’ of some groups to procreate and parent: ‘allowing “fit” mothers to have fewer but better babies, and decreasing the “degenerate” children produced by “poor” mothers’.Footnote ⁴¹ Indeed, in Marie Stopes’ 1927 edition of Birth Control, she advised that contraception was medically indicated in families in which one or more of the parents struggled with alcoholism, poverty, feeble-mindedness, or puerperal insanity.Footnote ⁴² Women who found themselves facing an unwanted pregnancy or unmarried and without support from the child’s father faced significant challenges, especially in an era in which sexual chastity remained closely tied to respectability and good womanhood.Footnote ⁴³

While the Infant Life Preservation Act, 1929, sanctioned abortion in instances where it was ‘done in good faith for the purpose only of preserving the life of the mother’Footnote ⁴⁴ in practice, the law remained highly ambiguous, exposing medical practitioners to the risk of criminal prosecution.Footnote ⁴⁵ Some women turned to dangerous and illegal procedures as a solution to an unwanted pregnancy, despite the significant risks such operations posed. The abstruse legal and ethical status of abortion prompted heated debates within medical and legal circles throughout the 1920s and 1930s. As with birth control, such debates were closely entangled with broader concerns over eugenics, population decline, and the fitness of the British ‘race’ during the inter-war years.Footnote ⁴⁶ Women who proceeded with their pregnancies faced the dangers of childbirth in a time in which maternal mortality remained high, despite infant mortality rates tumbling.Footnote ⁴⁷ Poor childcare provision and limited state financial support compounded the long-standing social stigma associated with unmarried motherhood and a woman’s survival as a single parent.Footnote ⁴⁸ Alcohol, domestic violence, and economic precarity also contributed to taxing home lives for many women. Married mothers, facing an unwanted pregnancy while struggling to raise older children against a backdrop of deprivation, had their helplessness compounded by financial dependence on their husbands. For some women, concealing their pregnancies and destroying their infants at birth (or soon after) presented a means to avoid community opprobrium, shame, and the loss of social or economic status.Footnote ⁴⁹

Eager to understand and extend sympathy towards such women, jurors exercised discretion in criminal proceedings. This could include returning a verdict of insanity based on limited evidence, downgrading capital murder to the lesser offence of concealment of pregnancy (where the victim was a newborn), or recommending mercy on compassionate grounds.Footnote ⁵⁰ Judges also used their sentencing remarks, widely reported in the press, to cast responsibility on the fathers of illegitimate children who rarely faced prosecution. As Ward has noted, the discourse of the ‘abandoned, impoverished, but ostensibly good’ ‘fallen woman’ encouraged sympathy and lenient treatment of women accused of infanticide.Footnote ⁵¹ Nevertheless, prior to the legislative changes of the twentieth century, English and Welsh women convicted of the murder of their newborn infants were sentenced to death, just as any other defendant found guilty of murder. From 1849 onwards, such women were never hanged; the death penalty was instead commuted.Footnote ⁵² Judges nonetheless observed the formality of the law by donning the ceremonial black cap and pronouncing the death sentence in court. From the early decades of the twentieth century, the label ‘black cap farce’ was applied to this incongruous spectacle of judicial sentencing.Footnote ⁵³ Pronouncing execution on mothers while knowing the sentence was never to be carried out was seen as an unnecessary cruelty against women who had already suffered. Consequently, a significant gap emerged between the letter of the law and its application.

Conflicting views among politicians and policymakers, together with concerns that significant change to the law on homicide might imply that child-killing was not as serious an offence as murder, led to repeated failures to reform the law in the 1860s, 1870s, and 1900s.Footnote ⁵⁴ However, as Daniel Grey and Anne Logan have shown, following the groundswell of popular outrage against the capital sentence imposed on Edith Roberts for the murder of her newborn daughter in June 1921, female magistrates deployed their professional networks and political connections to agitate in the press, and pressure the Home Office (HO) to make legislative changes.Footnote ⁵⁵ Subsequently, Labour MP Arthur Henderson introduced a bill into the House of Commons that attempted to reform the law on child murder.Footnote ⁵⁶ Despite the Bill being rejected, policymakers proceeded to draft and implement their own legislation.Footnote ⁵⁷ On 20 July 1922, the first Infanticide Act was granted royal assent. A woman could be convicted of the new offence of infanticide if she was found responsible for the killing of her ‘newly-born child’ while ‘the balance of her mind was…disturbed’, having failed to recover ‘from the effect of giving birth’.Footnote ⁵⁸ Such women were subsequently ‘dealt with and punished’ as if they had committed manslaughter. Emma Temple was the first woman to be tried under the new Act, at Lincolnshire Assizes in October 1922. Having pled guilty to the infanticide of her newborn daughter, Mr Justice Lush then sentenced Temple to four months’ imprisonment and commended the new Act as ‘a wise and humane piece of legislation’ that made it unnecessary ‘to put a girl on trial for murder’.Footnote ⁵⁹

Responses to the Infanticide Act, 1922

Positive reception to the first Infanticide Act did not last long, with the language and practical implementation of the legislation proving a stumbling block for police, coroners, lawyers and judges. Describing the 1922 Act as ‘beneficent but badly drafted’, Ernest Wild, Recorder at the Old Bailey, lamented in January 1925, that: ‘the grand jury could do nothing where there was a charge of murder but bring in a bill for murder and leave the petty jury to find a verdict of infanticide’.Footnote ⁶⁰ As a result, women suspected of the lesser offence of infanticide were still being marked with the stigmatising label of ‘murderess’. Arriving at the appropriate sentence for women convicted of infanticide was also problematic. On 23 November 1925, an appeal against the sentence imposed on Florence Irene Chick was heard at the Court of Criminal Appeal.Footnote ⁶¹ Chick had been convicted of infanticide and concealment of birth in October and sentenced to nine months’ imprisonment. She appealed the judgement on multiple grounds, with her counsel also arguing that she had received a more punitive tariff than a defendant in a similar case tried at Liverpool Assizes around the same time. Although acknowledging that ‘it was a serious offence’, the appeal judges reduced her sentence to three months’ imprisonment in the second-division.Footnote ⁶² Nevertheless, the HO maintained that the legislation had achieved its intended goals, with an internal analysis of prosecutions for the five-year period ending 1927, concluding that: ‘some women who…would have been convicted only of concealment of birth, have since 1923 been convicted of infanticide – which make the operation of law correspond more clearly with facts’ and ‘that several have been convicted of infanticide who would formerly have been convicted of murder’.Footnote ⁶³

Nonetheless, the 1922 Act continued to receive a cool reception in courtrooms and from the medico-legal community, with criticism centring upon how to define and interpret the phrase ‘newly-born child’. The issue reached a critical juncture in the case of Mary O’Donoghue, who had been convicted of the murder of her 35-day-old infant at the Old Bailey in October 1927, before Mr Justice Talbot. Her counsel, in appealing her conviction less than a month later, argued her deceased infant could be deemed ‘newly-born’ within the provisions of the legislation and that the jury should have been allowed to consider a verdict of infanticide, given ‘such a question [had been left] to the jury in the case of a child of six weeks old’ tried at Reading Assizes in October 1923.Footnote ⁶⁴ The appeal judges rejected these arguments.Footnote ⁶⁵ In January 1928, the editors of the Journal of Mental Science suggested that the judgement had done little to settle the matter of what the phrase ‘newly-born child’ meant and that ‘criticisms will not be diminished in force by the occurrence of the present case’.Footnote ⁶⁶

This editorial was revealed to be prophetic when only one month later, Dr Ann Louise McIlroy gave an address on infanticide reform before the London Medico-Legal Society.Footnote ⁶⁷ McIlroy was an influential female doctor and the first woman to be appointed professor of gynaecology and obstetrics at the Royal Free Hospital in London. She took a keen interest in maternal health, birth control, and reproduction and wrote at length on the responsibilities of the medical profession in these areas.Footnote ⁶⁸ McIlroy contended that while the Act offered some protection to women who killed their babies immediately after childbirth, it stigmatised mothers suffering from other forms of mental illness who killed while disturbed from pregnancy, the puerperium or breastfeeding.Footnote ⁶⁹ Under the terms of the McNaghten rules, McIlroy feared a woman suffering from puerperal insanity but who ‘murdered her child knowing that she was doing wrong’ might be convicted of murder and consequently stigmatised and punished by an extended period of incarceration.Footnote ⁷⁰ Given ‘the law absolves the mother who commits infanticide upon her ten-day-old child’, McIlroy argued ‘it should just as readily absolve the depressed mother, who, worn out by lactation, puts an end to her infant’s life’.Footnote ⁷¹ McIlroy recommended removing the phrase ‘newly-born’ from the existing Act and extending its operation to mothers who killed their infants in the six to nine month period after childbirth.Footnote ⁷² Such provisions were not only medically sound, but also upheld the responsibility the British state owed its female citizens to be merciful and compassionate, after all: ‘Motherhood is a sacred and patriotic service, and no woman should run the risk of being branded a murderess because she happens to fall a victim to one of the diseases incident to pregnancy’.Footnote ⁷³

McIlroy’s proposals and her broader discussion of infanticide reform met with a varied reception from the Medico-Legal Society. Although members agreed that the language of the legislation was problematic, there was no consensus on how the ‘newly-born question’ should be settled. Criminal court judge, Mr Justice Humphreys, admitted: ‘The Act was probably unnecessary’ but felt its retention helped ‘prevent the horrible farce of a judged assuming the black cap and sentencing to death a person who…was not in the last danger of being hanged and who would probably be released in few weeks’.Footnote ⁷⁴ Marie Stopes and Medical Superintendent of Springfield Mental Hospital, Dr Reginald Worth, agreed that the Act should be extended and cover the murder of infants not yet weaned.Footnote ⁷⁵ Other Society members felt a more restrictive period in which a child was defined as ‘newly born’ should be imposed by the legislation.Footnote ⁷⁶

The debate also centred on the broader questions of what (if any) role reproductive mental disorders played in infanticide and how to define the mental disorders that followed pregnancy, birth, and breastfeeding. In her paper, McIlroy argued that puerperal insanity was a ‘term used to denote an abnormal state during pregnancy, labour, the puerperium or lactation’ and could be broken down into three forms: ‘confusional, intermittent (manic-depressive), and dementia praecox’.Footnote ⁷⁷ Ten days following childbirth, women were ‘more likely to be melancholic, suicidal, and homicidal towards the infant’.Footnote ⁷⁸ Meanwhile, ‘badly nourished, overworked and poorly fed women’, worn down by the physical and mental strain of suckling an older infant, were more likely to be ‘melancholic in type’ and at greater risk of killing ‘on impulse’ than those who killed an infant in the days after its birth.Footnote ⁷⁹ The association McIlroy identified between reproductive states and mental maladies was echoed in leading British texts on women’s health. The 1928 edition of the Combined Textbook of Obstetrics and Gynaecology remarked that pregnancy and the puerperium could trigger disturbances in the nervous systems of women, leading to insanity, especially when complicated by prolonged labour and lactation, sepsis, exhaustion and a previous (or familial) history of mental illness.Footnote ⁸⁰

Reflective of British psychiatry’s mounting scepticism of a definite causal association between childbirth, lactation, and insanity, Dr Hubert Bond challenged McIlroy’s assertion that women killed while affected by distinct reproductive insanities.Footnote ⁸¹ In a savage critique, Bond asserted that: ‘there is no mental disorder…which, by its mental symptoms and in the absence of knowledge otherwise gained, can be recognised and diagnosed as due to child-bearing’.Footnote ⁸² He also claimed that maintaining ‘the use of such adjectival terms as puerperal, lactation’ to describe a woman’s mental condition created confusion by suggesting that such disorders existed distinctly in their own right.Footnote ⁸³ Dr Norwood East, an inter-war expert on male psychopathology, had also abandoned the use of ‘puerperal’ and ‘lactational’ insanity in his textbook An Introduction to Forensic PsychiatryFootnote ⁸⁴. In response to McIlroy’s paper, he suggested that the Act afforded greater consideration to the plight of women than of men, who also killed children in distressing circumstances. East opined that reform was unnecessary and that ‘although the law was illogical, in practice justice was done’.Footnote ⁸⁵ In the face of these critiques, McIlroy doubled down on the sex-specific distinctiveness of reproductive mental disorders, concluding that: ‘Childbirth was so great an ordeal, even to the most normal woman, that its effects on the mind could not be classed with any other form of mental disorder’.Footnote ⁸⁶ Although McIlroy’s paper and responses to it were disseminated to a broader professional audience via the British Medical Journal and The Lancet, it did not prompt any initiatives to reform the law.Footnote ⁸⁷

Medical and legal developments, 1930 - 1935

Incremental improvements in the legal treatment of mothers, however, were introduced during the early 1930s. The Sentence of Death (Expectant Mothers) Act was passed in the 1931 Parliament in direct response to the capital sentence imposed on 37-year-old pregnant mother Olive Kathleen Wise for the murder of her 9-month-old son.Footnote ⁸⁸ This legislation abolished the recording and pronouncement of the death penalty on pregnant women, replacing this sentence with penal servitude for life.Footnote ⁸⁹ In Autumn 1931, two Middlesborough MPs, Ellen Wilkinson and Frank Kingsley Griffiths, lobbied the Home Secretary for the release from Durham Gaol of 43-year-old mother, Catherine Cunningham.Footnote ⁹⁰ Cunningham had been sentenced to three months imprisonment for attempted suicide by stipendiary magistrate Mr H.S. Mundahl in September 1931. As a respectable mother of fourteen children who had attempted to gas herself while plagued by significant financial and personal worries, Cunningham’s sentence prompted public outrage.Footnote ⁹¹ Following pressure from politicians, social workers, and the press, ten days after sentencing, she was liberated, on order of the Home Secretary.Footnote ⁹²

Meanwhile, the medical profession continued to ruminate over the potential causal link between insanity and female reproductive states. Certainly, some in the psychiatric profession pronounced the death of puerperal insanity and its related disorders with the same confidence that Hubert Bond had evinced in 1928. Dr E.W. Anderson, Assistant Medical-Officer at the Maudsley Hospital, opened his 1933 paper ‘A Study of the Sexual Life in Psychoses Associated with Childbirth’ with the declaration that: ‘It is now universally recognized that there is nothing specific in the form of psychoses associated with childbearing’.Footnote ⁹³ However, when the opinions of the psychiatric profession were canvassed more broadly, there was less consensus on the subject.

That same year, the British Journal of Gynaecology shared the findings of Dr Arthur Leyland Robinson’s survey of the attitudes of British alienists on the effects of reproduction upon insanity.Footnote ⁹⁴ As Professor of Midwifery and Gynaecology at the University of Liverpool and Honorary-Surgeon at Liverpool’s major maternity hospitals, Robinson was firmly entrenched in inter-war obstetric thinking and practice. In sympathy with many alienists, Robinson endorsed the belief that: ‘No specific kind of mental disturbance is produced by the physical and psychical changes that follow conception’.Footnote ⁹⁵ However, Robinson was reluctant to deny a causal association between reproduction and insanity, noting that ‘the results of conception may have a specific effect upon the disordered mind. This latter view has long been the cherished belief of the obstetrician by whom mental and nervous changes of early pregnancy have been regarded as characteristic and indeed pathognomic’.Footnote ⁹⁶ Curious to canvas the views of British psychiatrists, Robinson surveyed ninety-five alienists on a variety of questions, including what opinion mental specialists held as to ‘the effect of the process of reproduction upon the incidence of insanity’.Footnote ⁹⁷ The results of the survey revealed that the majority of alienists did not think that ‘child-bearing is… a…specific cause of insanity, but may act as an exciting or contributory factor in the presence of hereditary predisposition and physical or mental stress’.Footnote ⁹⁸ Only thirteen percent of those evaluated felt that childbirth caused insanity outright, while the same percentage of participants felt it had no influence whatsoever.Footnote ⁹⁹ Given that almost seventy percent of surveyed mental specialists felt that there was some link between childbirth and insanity, Robinson’s study demonstrated that few psychiatric practitioners were as adamant as Anderson in denying a potential causal link between reproduction and mental illness. It was evident, too, that both specialties shared a belief that even if childbirth did not produce distinctive forms of maternal mental disorder, reproductive states nevertheless had an important impact upon the mental health and psyche of women.

Against such a backdrop, an accommodating space for medical practitioners to champion a variety of sympathetic explanations for maternal child-killing was able to flourish. For example, in September 1935, The Manchester Guardian reported on Dr Edith Summerskill’s campaign to reform the criminal justice system’s response to insane mothers.Footnote ¹⁰⁰ Summerskill, a self-proclaimed socialist and feminist who won the seat of West Fulham for Labour in 1938, campaigned in the areas of maternal health, birth control, and welfare provision throughout her career. Observing the living conditions of her poorer patients since her early days in practice, she argued a direct causal link could be drawn between motherhood, insanity and the hardship endured by working families impacted by the Depression: ‘The question of puerperal insanity is rather a terrible one…The mothers, when their husbands are out of work, have such a time half-starved and worried by the extra addition to the family, and this all serves to aggravate their mental condition’.Footnote ¹⁰¹ Summerskill conveyed her hopes to the Manchester Guardian that Parliament might consider introducing a measure where mothers who murdered their children, while suffering from puerperal insanity, might be assessed by ‘a committee of alienists and psychiatrists’ and treated medically, rather than be subjected to the ordeal of committal and trial at police courts or assizes. However, her proposals gained little traction beyond some brief press interest.

Lord Dawson of Penn and R v. Hale (1936)

Almost nine months later, on 21 July 1936, Brenda Hale was brought to trial before Mr Justice Travers Humphreys at the Old Bailey.Footnote ¹⁰² Hale’s lawyers attempted to argue prior to her trial that her case should be prosecuted under the remit of the Infanticide Act 1922 rather than a capital murder charge.Footnote ¹⁰³ This was based on the fact that the infant was twenty-two days old at the time of its death and that no timeframe had been defined by the 1922 Act in which a child was (or was not) ‘newly-born’. If successful, it was hoped she could avoid the imposition of a ‘Guilty, but Insane’ verdict and the subsequent incarceration at a mental institution (for an indefinite period) that this would entail.Footnote ¹⁰⁴ Alongside Hale’s attending obstetrician, Dr Medlock, Lord Dawson of Penn was also called as an expert witness in support of the defence argument.

While no records survive explaining why Hale’s legal team specifically sought Dawson’s opinion as a medical witness, a brief review of Dawson’s professional resume offers ample evidence of his expert status. Sir Henry Bashford’s obituary to Dawson, published in The Spectator in March 1945, described him as ‘the most widely known physician in the English-speaking world. He was also one of the most trusted’.Footnote ¹⁰⁵ At the time of the Hale case, Dawson was in his early seventies, having reached the pinnacle of a long and successful career in the public eye. He practised as a consulting physician in Harley Street until 1940 while also maintaining a long-running affiliation with The London, where he had completed his residency and gained his earliest institutional appointments.Footnote ¹⁰⁶ In 1907, he was appointed physician-extraordinary to King Edward VII and served in the Medical Households of successive monarchs as a royal physician.Footnote ¹⁰⁷ When Dawson was made a Baron in 1920, he became the first practicing member of the medical profession to be elevated to the peerage in the House of Lords, and in the same year as the Hale trial, he was made a viscount.Footnote ¹⁰⁸

Dawson’s involvement in numerous governmental advisory bodies, medical organisations and inter-professional committees extended his influence. He had an ongoing relationship with the Ministry of Health and played a significant role in advising upon the organisation of post-war medical services, culminating in the Dawson Report in 1920.Footnote ¹⁰⁹ During the inter-war years, he was president of the Medical Society of London, the British Medical Association (BMA), and the Royal College of Physicians (RCP). He was also involved in inter-professional committees and networks which garnered press attention, including the Medico-Legal Society and Advisory Committee on the Scientific Detection of Crime.Footnote ¹¹⁰ Significantly, Dawson used these appointments to advocate for greater involvement of the medical profession in service to the state. His personal philosophy was embedded in an idea of citizenship in which the nation benefited most when the individual and state actively and mutually served each other: ‘What we seek is men…to solve the problems of life and health…For citizenship should be a recognition of mutual dependence and the value of service. The state claims for each citizen a positive allegiance, not a negative acceptance’.Footnote ¹¹¹

Dawson’s internationally disseminated speech to the Church Congress at Birmingham in October 1921 advocated the use of birth control within marriage and endorsed sex as important to this union.Footnote ¹¹² For Dawson, birth control offered an efficacious way to manage the expansion of respectable English families so that a mother would not be worn down by the physical and emotional stress of successive births and childrearing.Footnote ¹¹³ Into the 1930s, he maintained that the ideal family should have at least three children to support not only the ‘happiness and enduring youth’ of the individual but also so that British imperial sovereignty would be guaranteed for successive generations.Footnote ¹¹⁴ In support of this mission, Dawson championed schemes to improve the quantity and quality of the British populace amid reports of a low birth rate and apocalyptic projections of population decline.Footnote ¹¹⁵ In addressing the York Medical Society in November 1935, he argued for improvements in nutritious food provision and physical fitness for the young, as well as milk subsidies for children, pregnant women, and nursing mothers.Footnote ¹¹⁶ Dawson also endorsed negative eugenic schemes, including segregation and the voluntary sterilisation of ‘mental defectives’, by arguing that society could not ‘afford to have these vicious strains breeding in our midst’.Footnote ¹¹⁷ The physician’s pro-natalist standpoint was well-acknowledged, if not universally endorsed,Footnote ¹¹⁸ with Punch satirising his campaigning for the Physical Training and Marriage Bills in mid-1937 under the captioned cartoon of ‘A Brace of Babies’.Footnote ¹¹⁹

At the Hale trial, Dawson’s testimony on the ‘newly-born question’ was deployed as part of the broader defence stratagem to bring the case within the remit of the 1922 Act. Dawson noted that the phrase had ‘never been defined in medicine’Footnote ¹²⁰ but endorsed the practice adopted by medical statisticians and the Ministry of Health, who included ‘any child …up to four weeks old’ as ‘newly born’.Footnote ¹²¹ Despite this strategy, Humphreys J asserted that the Hale case was beyond the provisions of the Act as he was bound by the O’Donoghue decision. Hale’s team were more successful, however, in arguing that she had failed to recover from the effects of giving birth and so was not legally responsible. Following Dr Medlock’s evidence of Hale’s medical history and disturbed mental state following the crime, Dawson testified that:

Humphreys J stated during the proceedings that the lack of legal clarity over the phrase ‘newly-born child’ remained deeply problematic. However, Dawson’s definition would be helpful to legislators, with Humphreys J expressing the ‘hope that Parliament might…put a short section into the Act…saying what is the definition of a newly-born child’.Footnote ¹²³ In his remarks to the jury, the judge also conveyed his frustrations with the language adopted in English criminal law to describe an acquittal on the grounds of insanity, arguing that a ‘Guilty, but Insane’ verdict erroneously implied that a defendant was guilty of murder.Footnote ¹²⁴ Evidently persuaded by the case advanced by defence medical experts and the opinions of the presiding judge, the jury returned the novel verdict of: ‘Not guilty of murder but guilty of the act charged for which she was not responsible in law’. Hale was ordered to be detained for His Majesty’s Pleasure.

Dawson’s Infanticide Bill

The Hale trial prompted a strong press, and political and public reaction. In reporting the case, the English press had been quick to note that the trial was one of three maternal child-killing cases before Humphreys J at the Central Criminal Court that week alone.Footnote ¹²⁵ For example, the Daily Herald reported the outcome of the Hale trial alongside updates on the cases of Helen Alcorn and Gweneth Enid Dryland, two married English women who had also killed their own children. In a central page spread that included a photograph of 24-year-old Alcorn posing lovingly with her (since deceased) infant daughter, the paper reminded its readers of the emotional damage and strain the verdict, and its aftermath, wrought upon the families of the tried women. Alcorn’s husband confided to the Daily Herald that: ‘It was a terrible ordeal to look forward to with the sentence hanging over her’.Footnote ¹²⁶ The arbitrary nature of the law also became a subject of parliamentary debate. On 28 July 1936, Rhys Davies, Labour MP for Westhoughton, asked the Secretary of State during question time in the House of Commons why Hale had not been prosecuted under the 1922 Act, given ‘the facts showed that this was a case for which the Infanticide Act was intended’.Footnote ¹²⁷ Officials in the HO and Lord Chancellor’s Office (LCO) had been monitoring the outcry and ill-fated attempts to reform the 1922 Act since the start of 1936.Footnote ¹²⁸ The National Council for the Abolition of the Death Penalty (NCADP) had been particularly active in lobbying sympathetic MPs to amend the offence in the eighteen months prior to the Hale case.Footnote ¹²⁹ Conservative MP for Wallsend, Irene Ward, had corresponded with the HO on an Infanticide Bill drafted under the NCADP’s recommendations. The Bill proposed extending the offence to mothers who killed children up to the age of eight while suffering from a disturbance of mind following childbirth, or from ‘distress and despair arising from solicitude for her child or extreme poverty or other causes’.Footnote ¹³⁰ Ward’s proposal was rejected by the Home Secretary, Sir John Simon, who emphasised his reluctance to consider reform. Labour MP, John Jagger, introduced a bill into the House of Commons modelled on the same parameters as Ward’s proposal four months after the Hale case.Footnote ¹³¹ It suffered the same fate as Ward’s measure.Footnote ¹³²

Pressure had also been mounting on the government from two of the principal actors in the Hale case. One day after Humphreys J had presided over the proceedings at the Central Criminal Court, he wrote a two-page letter to the Lord Chancellor on the renewed issues the Hale case posed for the judiciary. Specifically, he raised the question of whether the phrase ‘newly-born child’ might be settled through the introduction of a bill in Parliament.Footnote ¹³³ Schuster replied on behalf of the Lord Chancellor, noting that when the 1922 Bill was drafted, it had been intended that the ‘newly-born question’ would ‘work itself out’Footnote ¹³⁴ and that ‘the Judge would leave it to the jury’ to decide.Footnote ¹³⁵ Schuster failed to acknowledge in his reply that he had been intimately involved in the drafting of the Act and was responsible for the adoption of the problematic phrase.Footnote ¹³⁶ He admitted, however that the Infanticide Act had never been intended as a measure to include mothers who killed older infants, or where there was clear evidence of mental insanity, as in the case of R v. Hale: ‘the statute was intended to apply where…the woman might be…in the state of physical and mental confusion…as usually comes…in these cases’.Footnote ¹³⁷ Records demonstrate that Humphreys also conferred in-person with Alexander Maxwell, Deputy Under-Secretary of State at the HO, on amending the legislation. However, as with Schuster before him, Maxwell gave little practical support to Humphrey’s recommendations. Thus, despite the efforts of the High Court judge, penal reformers and sympathetic MPs, by November 1936, it was evident that the various government ministries entangled in the question of infanticide reform were ‘in favour of doing nothing’Footnote ¹³⁸ to change the law.

By Autumn 1936, a separate campaign for reform was progressing under Dawson’s ministrations. In correspondence to the LCO, Humphreys J noted that he and Dawson had discussed the ‘newly-born question’ following the Hale case.Footnote ¹³⁹ In this exchange, Dawson had confided that ‘a definition would be welcomed by the doctors…He would support a month in the House of Lords’.Footnote ¹⁴⁰ According to the judge, Dawson ‘ha[d] always been interested in this problem’Footnote ¹⁴¹ and it is likely that the shared involvement of the two men in the Medico-Legal Society further enabled Humphreys J to solicit his opinion. Infanticide reform certainly harmonised with Dawson’s interest in maternal welfare at the time of the Hale case. At a dinner of the British College of Obstetricians and Gynaecologists three months after the trial, he conveyed the hope that public anxieties over the safety of childbirth might be alleviated if ‘we get it into the mind of the people that maternity is a safe proceeding and that the risks…are…far less than in many common events of daily life’.Footnote ¹⁴² Although it remains unclear at what point interest in the problem transformed into an active campaign, by September 1936, Dawson had written to Edward Hale Tindal Atkinson, Director of Public Prosecutions (DPP), requesting ‘statistics of infanticide…passing through this Department from the beginning of 1935’.Footnote ¹⁴³

Records also indicate that Dawson drafted his Bill based on consultation with medical and legal practitioners. As President of the RCP, he acknowledged canvassing members for their advice on the legislation, referring the question of infanticide reform to ‘a committee of experts’.Footnote ¹⁴⁴ Unfortunately, the recommendations of the RCP’s committee, opinions of ‘leading King’s Counsel’, and the ‘considerable correspondence’ Dawson received on infanticide reform do not appear to have survived.Footnote ¹⁴⁵ However, a paper delivered by Dr J.C.M. Matheson to the Medico-Legal Society in April 1941 suggests that Dawson may have sought the opinion of prison medical officers as part of his consultation within the medical profession.Footnote ¹⁴⁶ Crucially, as Governor and Medical-Officer of Holloway Prison in 1936, Matheson reported on the mental fitness of Hale for trial, and so was intimately connected with the case.Footnote ¹⁴⁷ As Stephen Watson has shown, prison medical officers were ideally placed to speak as experts on questions of mental responsibility due to their proximity to and observation of prison populations.Footnote ¹⁴⁸ Dawson also used his networks within psychiatry to gather data upon which to justify the parameters of his Bill. Indeed, HO correspondence indicates that Dr A.E.W. Petrie, Medical Superintendent at Banstead Hospital and Lecturer in Psychological Medicine at Charing Cross Hospital, was working with Dawson to support the implementation of his Infanticide Bill. Writing to Dr Foulerton, Deputy-Medical-Officer at Holloway Prison in March 1938, Petrie noted: ‘Dawson is very anxious to obtain further confirmation of the necessity to legislate for those after the immediate puerperium, ie. lactational cases…Lord Dawson was much impressed with your figures and those of Dr Hopwood…Can you or Dr Hopwood help?’Footnote ¹⁴⁹ Dawson’s ability to deploy professional connections in service of infanticide reform underscores not only his significant practical influence within the profession but also demonstrates how he believed medicine could fruitfully serve the state in helping to ‘solve the problems of life and health’. That legal and medical practitioners were evidently willing to back Dawson’s, cause reflects an eagerness to reach a point of working clarity on the question of infanticide.

Just before Christmas 1937, Dawson introduced his Infanticide Bill into the House of Lords. The private member’s bill was positively touted in the British press as ‘Mercy For Mothers’Footnote ¹⁵⁰ allowing a woman who killed her infant, aged less than one year old, to be found guilty of infanticide if she committed the crime while the balance of her mind was disturbed following the child’s birth or from the effects of lactation. As with the 1922 Act, a convicted woman would be dealt with as though she had committed manslaughter. Although more conservative than the reforms proposed by Summerskill, Ward, or Jagger, Dawson consciously portrayed the Bill as adopting ‘the middle course’ within the spectrum of options open to reformers. As he observed, this approach was intended to be a measured and sympathetic solution to the infanticide question, for: ‘in the case of a woman who has, after all, done a great public service in bringing children into the world, and who goes through a time of great stress, especially in these days, I think we are entitled to treat her better than the law does at present’.Footnote ¹⁵¹

Between the Bill’s First Reading and its eventual passage into law as the second Infanticide Act in June 1938, Dawson used his speeches in the Lords to win support for his reforms. Leveraging his professional experience, networks, and status as a physician, Dawson framed infanticide reform as primarily a medical concern, justifying his leadership of the campaign. In the Second Reading of the Bill on 22 March 1938, Dawson made his position and intentions clear:

He also referenced his personal involvement in the infanticide question by citing his role as an expert defence witness in the Hale case and drawing upon the data he had acquired from Hopwood and Foulerton as to the prevalence of infanticidal mothers within Broadmoor Criminal Lunatic Asylum.Footnote ¹⁵³ For Dawson, mothers who killed while suffering from puerperal insanity or related conditions should be recognised in the criminal justice system as sick rather than bad women, and: ‘as much cases of illness as any other complications of child-birth, as much as the physical complications, quite as much as streptococcal septicaemia, quite as much as white lead…They bear perfectly clear evidence of temporary insanity’.Footnote ¹⁵⁴ In casting infanticide as a medical object, his rhetoric also worked to implicitly justify a continued space for the profession’s expertise in child-killing prosecutions in twentieth-century British courts.

Dawson was also keen to cast his Bill as a measured and sympathetic response to the suffering of respectable, loving mothers, whose subsequent exposure to the criminal justice system became a source of shame and trauma. Citing the Hale case anecdotally, Dawson noted that prior to the crime, the farmer’s wife had been: ‘sane; she was happily married, and a good mother’.Footnote ¹⁵⁵ When at trial a defence of infanticide had not been open to her, Dawson noted that the judge and jury were left with no choice but to find Hale ‘Guilty, but insane’ and so commit her to indefinite incarceration, thus: ‘these people have the alternative either of being convicted of murder, with all the slur that that involves to themselves and their families, or of being committed to Broadmoor, which leaves upon them the stamp of insanity’.Footnote ¹⁵⁶ During the Committee phase two weeks later, Dawson stressed once more the shattering impact infanticide wrought upon the domestic felicity of the inter-war family:

The adoption of such reforms would, Dawson argued, ‘remove once and for all a stigma about which public opinion has been disturbed for sixty years’,Footnote ¹⁵⁸ by better recognising in law the sometimes fatal link between motherhood, mental disorder, and violence. Dawson’s focus on the Hale case as providing both inspiration for, and an example of, the type of women that his reforms could help, signalled a shift away from the desperate, unmarried infanticidal mother of archetype, targeted by the earlier Act. Reshaping the object of his Infanticide Bill to this type of offender, not only created a distinct gap within the existing law for Dawson’s Bill to fill, but also helped channel pre-existing sympathies within the press, Parliament, and the broader public, to a recognisable and sympathetic embodiment of ‘respectable’ femininity and tragic motherhood. Although speculation, such women also upheld the kind of family-centric womanhood that Dawson saw as vital to the longevity of the British race, and which were doing their biological and national duty by ‘bringing children into the world’.

Reactions to the Bill

Although Whitehall officials remained averse to reform, the appetite for legal change was described as strong in the British press and was broadly popular among parliamentarians. Atkinson remained steadfastly opposed to Dawson’s proposals, citing the risk that an unwanted child might be murdered ‘in circumstances in which a dishonest defence might be put forward inducing a verdict of infanticide’.Footnote ¹⁵⁹ Moreover, Dawson’s bid to abolish the verdict of ‘Guilty, but Insane’ in infanticide cases was abandoned when it was revealed that such changes were beyond the powers of his Bill and required wholesale changes to criminal procedure.Footnote ¹⁶⁰ Nevertheless, influential civil servants like Maxwell ultimately adopted a pragmatic view of the legislation:

In a letter dated 8 February 1938 to Maxwell, Schuster remarked that having shown the Bill to the Lord Chancellor: ‘He agrees that it is no use to oppose the Bill. He would, however, like the Home Office representative to sniff at the Bill in the House of Lords. It is obviously a very silly bill’.Footnote ¹⁶²

Unlike policymakers, the British press welcomed Dawson’s proposals. The Daily Telegraph reported glowingly on the Bill, noting of its Second Reading in March 1938, that: ‘The Socialist and Liberals, the Law Lords and the Primate joined, “in the interests of justice and pity,” with Viscount Dawson of Penn in furthering his Infanticide Bill’.Footnote ¹⁶³ The Daily Express, in describing the Bill under the headline ‘A Law of Mercy’, remarked that: ‘Whatever spares us the senseless cruelty of condemning poor mothers to death…while half-crazy with the pain of childbirth is GOOD’.Footnote ¹⁶⁴ Even sceptics, like conservative writer and columnist Gilbert Frankau, seemed to approve of Dawson’s ‘sincere and common-sensical measure’.Footnote ¹⁶⁵ Nevertheless, Frankau warned that further reforms, if left unchecked, could contribute to the broader dismantling of capital punishment for women.Footnote ¹⁶⁶

The response within the legal profession to Dawson’s proposals was generally positive, although questions remained over the legislation, particularly whether it was necessary or would be effective in practice. In January 1938, the Law Journal endorsed the Bill, stating that:

J.A. Palmer, writing in the Justice of the Peace and Local Government Review, was more cautious, querying the extent to which the time limits of the Bill might raise broader questions for the maintenance of capital punishment more generally.Footnote ¹⁶⁸ Although the Medico-Legal Review observed that the legislation ‘would considerably widen the class of woman…found guilty of infanticide’Footnote ¹⁶⁹ the editors questioned whether the Bill would appease those who wanted more radical reform, so that ‘a woman who was in truth irresponsible when she killed her child should be dealt with like any other mental patient and not treated as a “criminal lunatic”’.Footnote ¹⁷⁰ This view was also echoed separately by Palmer, who claimed that such a Bill should be unnecessary given that the criminal law recognised that the insane were not fit subjects for punishment.Footnote ¹⁷¹

In January 1938, The Lancet endorsed the comments of female magistrate R.H. Crowley, who argued that in infanticide cases, ‘the medical aspect is too little considered’.Footnote ¹⁷² Crowley had been horrified to witness ‘a young woman…apparently committed under the influence of puerperal insanity’ and ‘caged like some savage animal’ in a provincial prison while awaiting trial for infanticide.Footnote ¹⁷³ The Lancet endorsed Dawson’s Bill as a ‘desirable reform’ but hoped that: ‘Mrs Crowley’s point – namely, that the accused mother is a fitter subject for observation and treatment in a mental hospital than in a prison cell’ would be added to the reforms considered by the Lords.Footnote ¹⁷⁴ In May 1938, the Parliamentary Subcommittee of the BMA backed Dawson’s Bill while also proposing an amendment: ‘to provide that when a woman charged with infanticide was remanded or committed for trial she should be remanded to a mental hospital and not to prison’.Footnote ¹⁷⁵ Dawson attempted to enact the Subcommittee’s suggestion, raising the issue within parliamentary debates of his Bill. In HO records, it was determined some months later that although no procedural change could be implemented through the proposed Infanticide Bill, the Chief Magistrate agreed that local Justices should deploy their discretionary powers more fully to bail women to suitable places of security.Footnote ¹⁷⁶

The Infanticide Act 1938

On 23 June 1938, Dawson’s Infanticide Bill was passed into law, with minor amendments, following a seamless passage through the House of Commons. Despite an extended period of gestation, the Infanticide Act 1938 received little immediate fanfare. Instead, medical, legal, and media attention redirected to the issue of abortion in the wake of the trial of gynaecologist, Dr Aleck Bourne, in July 1938.Footnote ¹⁷⁷ By the spring of 1939, debates within the Lords on the alarming failure of ‘the nation…to reproduce itself since 1925’Footnote ¹⁷⁸ captured Dawson’s attention once more. Family allowances, payable to mothers, and housing built with family life and childcare provision in mind, should be part of the solution, Dawson argued.Footnote ¹⁷⁹ However, impressing on women the psychological fulfilment motherhood offered and that reproduction was a national imperative to ensure ‘our people shall be adequate in numbers and stable in their civilisation’, was just as critical too.Footnote ¹⁸⁰

Despite infanticide law receding from public scrutiny, Dawson’s reforms had a palpable impact. In the ten years after the Act, the annual average figure of prosecutions for infanticide at assize and quarter sessions more than doubled.Footnote ¹⁸¹ The first woman tried under the legislation was 29-year-old married mother, Jennie Margaret Dormer.Footnote ¹⁸² Dormer had been depressed following childbirth and struggled to feed her 10-week-old daughter. Her mental condition had deteriorated further in response to the growing threat of conflict with Germany, following the May Crisis in Czechoslovakia. In October 1938, she fatally gassed her daughter. During her incarceration at Holloway, her mental health improved and following the acceptance of her plea of infanticide, Dormer was bound over for two years and released into the care of a friend. Subsequent trials across the country would see the provisions of the new Act endorsed by a judiciary eager to explain the violent actions of infanticidal mothers as proof of mental disorder. In October 1939, married 42-year-old mother Annie Slater was found guilty of infanticide and sentenced to two months’ imprisonment for the drowning of her son. Mr Justice Stable took pains to assure her that incarceration was not a punishment, but a chance to recover physical and mental health while in the prison hospital.Footnote ¹⁸³

Although Dawson described the 1938 Act as a collaborative expression of medical and legal opinion on the question of infanticide, the legislation did little to resolve the ambivalent attitude of the medical profession to the existence of distinct reproductive insanities. Thirteen years after McIlroy had raised the ‘newly-born question’ before the London Medico-Legal Society, the same debates over diagnosis and the legal response to mothers who killed, were played out once more. Matheson, who had been involved in the Hale case and (likely) canvassed by Dawson in preparation of his Infanticide Bill, summarised the position in an address to the same Society in 1941:

Dr Norwood East concurred, concluding: ‘it was more desirable to leave these terms out entirely…it was ridiculous to talk about puerperal lactational insanity when it did not really describe the condition with which one was faced’.Footnote ¹⁸⁵