It is queer to look back and think that only a dozen years ago the abolition of the death penalty was one of those things that every enlightened person advocated as a matter of course, like divorce reform or the independence of India. Now, on the other hand, it is a mark of enlightenment not merely to approve of executions but to raise an outcry because there are not more of them.
-George OrwellThe punishment prescribed by English law for murder in the first half of the twentieth century was death. A judge had to pronounce this sentence upon a person convicted of murder, except in two special classes of cases: persons under eighteen years of age at the time of the offense and pregnant women.' He had no discretion to impose any less severe sentence.
1.From 1887, executions for those under eighteen were virtually abolished by use of the royal prerogative of mercy. The Children Act, 1908, formally abolished the death penalty for persons under sixteen; the Children and Young Persons Act, 1933, confirmed the existing practice of reprieve by ending capital punishment for those under eighteen. The Sentence of Death (Expectant Mothers) Act, 1931, prohibited the death sentence on a pregnant woman. In addition, by the 1922 Infanticide Act, a woman charged with the death of her "newly born"-a term undefined in the Act, and narrowly interpreted by the courts, but Victor Bailey is Professor of Modern British History at the University of Kansas. He is grateful to the University of Kansas for the General Research Fund award that made it possible to complete this article. He would also like to thank Sheila Blackburn, Karl Brooks, Jonathan Clark, Ken Morgan, Elaine Reynolds, Lisa Steffen, the members of the British Seminar at Kansas University, and the anonymous reviewers for their valuable comments on an earlier draft of this article. While retribution survived only in a symbolic form elsewhere in the criminal law, capital punishment, as Oxford criminologist Max Grunhut maintained, was a "powerful relic of retaliation in kind." The law still reflected the ancient concept that every murderer forfeits his life because he has taken another's life: "He that smiteth a man, so that he die, shall be surely put to death." 2 In practice, the rigidity of the law was mitigated by the exercise of the royal prerogative of mercy, which rested in the hands of the home secretary, the government minister responsible, among other things, for the police and prison services. The effect of a reprieve, before 1948, was to reduce the sentence to penal servitude for life. 3 In the fifty-year period from 1900 through 1949, 1,210 persons were sentenced to death in England and Wales (1,080 men and 130 women). Five hundred and fifty-three, or 45.7 percent, had their sentences commuted or respited.4 A larger percentage of female murderers (90.8 percent) benefited from the prerogative of mercy than males (40.3 percent). The first figure indicates considerable reluctance to apply the death penalty to a woman. The remaining 632 (or 52.2 percent of those sent...