This page contains the "This Month in Legal History" column as
published in the current Michael J. Malone Douglas County Law Library
E-Mail Newsletter. The column features a different event from the
history of law and jurisprudence of Douglas County, Kansas, that
occurred during the month. It is published monthly in the Michael J.
Malone Douglas County Law Library E-Mail Newsletter and on the Home
page of this website.
Archived entries from this and previous years can be accessed by
visiting the This
Month in Legal History Archive page on this website.
January 25, 1906 - Judge Charles A.
Smart rules on "The Incubator Baby".
Charlotte E. Thompson was born in February 1880 in Guelph Township,
Sumner County, Kansas, to Robert and Ora Thompson. Lottie, as Charlotte
was known, was the second of four children, with an older brother named
Henry and two younger siblings, Beecher and Kate. Their father made his
living as a druggist. Sometime between 1880 and 1900, the family's
situation changed, when Robert died and Ora moved her children to
Leavenworth, Kansas. By 1900, both she and Henry were working there as
school teachers. Lottie met a young man named Joseph J. Bleakley, who
had been born in November of 1877 to Joseph and Alicia Bleakley. He was
living with his parents on their farm in Reno Township in Leavenworth
County, northeast of Lawrence, Kansas. The two young people began a
relationship and were married on August 13, 1903. The newlyweds moved
in with his parents. Lottie became pregnant, but when this occurred is
unclear. Later court testimony indicates that her husband did not want
her to have the baby, and that he tried to make her terminate the
pregnancy, maybe going so far as attempting to cause her to miscarry.
This was too much for Lottie, and she left Joseph, eventually making
her way to St. Louis, Missouri. The reason she went there is unclear.
The Louisiana Purchase Exposition, better known as the St. Louis
World's Fair, was scheduled to open in the spring of 1904, and many
young people were attracted to St. Louis because of the anticipated
excitement and opportunity for employment. Regardless of the reason,
that is where Lottie went, arriving there on December 17, 1903. A group
of Protestant women in St. Louis had been concerned about keeping the
female transients arriving in their city safe from "temptation in all
its forms," and had opened a shelter. It is likely that Lottie took
advantage of this and stayed there. She was also given assistance in
looking for employment, and soon found a job with a Mrs. Wheeler. On
February 9, 1904, she went to what was later described as "a lying-in
hospital or sanitarium," run by a midwife named Mrs. Merrifield(1), and
on February 15, 1904, Lottie gave birth. As she was coming out from
under chloroform anesthesia, Lottie was shown a dead baby and was told
that it was her baby and that it was stillborn. She agreed to pay $15
for half of the funeral expenses, which included a "nice white casket".
Two days later on the 17th, Lottie contracted scarlet fever. On
February 23rd, she wrote to Joseph, informing him of the death of the
baby and asked him to send her $15 for the other half of the funeral
expenses. Lottie's brother came to St. Louis in response to a telegram
and found her condition "to be deplorable." He contacted a Dr. Buford
and had her transferred to Bethesda Hospital on February 27th. Around
that time, Lottie sent for her mother, who came to St. Louis to help
care for her daughter. Lottie eventually recovered and was released
from the hospital. On April 22, 1904, Mrs. Merrifield called the office
of a doctor at Deaconess Hospital in St. Louis who was in charge of
infant incubators. Incubators to help premature and sick infants
survive were a relatively new invention, and an exhibition of them was
to be part of the World's Fair, scheduled to open at the end of the
month. The exhibit was to include live infants in the incubators. The
doctor at Deaconess Hospital was in charge of the incubator exhibition
for the Fair. Mrs. Merrifield told the doctor that she had an infant
girl that was sick, and presumably a good candidate for the exhibit.
The next day, a nurse named Kelly from Deaconess Hospital picked up the
sick infant from Mrs. Merrifield and took her to the hospital, where
she was put in an incubator. Some later accounts contend that money
exchanged hands during the transaction. The hospital named the girl
"Edith Brown." The infant was also known there as "Edith Merrifield"
and "Edith Darwin Brown," "Darwin" because she looked like a
chimpanzee. Around the first of May, Lottie was brought home to Kansas.
At that same time, the incubators from Deaconess
Hospital, including the one containing Edith Brown, were moved to the
exhibition at the Fair. The infant soon began to thrive in the
incubator. Around this time, people began to refer to her as "The
Incubator Baby(2)". James G. Barkley(3) and his wife Stella Barkley,
who were purported to be a wealthy couple from Elmira, New York, came
to St. Louis. James was in charge of an exhibit of agricultural
implements at the fair from Deere & Mansur Company. Stella viewed
the incubator exhibit and saw baby Edith. Stella eventually was
employed at the incubator exhibit, and was there every day. The
Barkleys were childless, and Stella became enamored with the by then
healthy infant. After she tracked baby Edith's origins back to Mrs.
Merrifield's hospital, the couple applied to adopt it. Several attempts
were made to convince Lottie to sign a statement that The Incubator
Baby was not hers, including a trip to Kansas by an employee of the
incubator company. Several letters passed between Stella and Lottie,
which seem to indicate that both Lottie and Stella thought the baby
might be Lottie's. Lottie signed adoption papers with the understanding
that her father-in-law Joseph Bleakley would take them to St. Louis and
determine for certain if the baby was hers or not. Only after he was
convinced that it was not Lottie's would he give the signed adoption
papers to the Barkleys. Apparently he did not do what Lottie had
expected him to do when he arrived in St. Louis, and instead just
turned the adoption papers over to the Barkleys, who were then granted
the adoption. They named the baby Dorothy Edith Barclay. Lottie soon
became suspicious that her father-in-law had not done what she had
wanted, and traveled back to St. Louis to find out the truth herself.
She went to the hospital where she had given birth and confronted Mrs.
Merrifield, who eventually admitted that The Incubator Baby was
actually the infant born to Lottie on February 15, 1904, and that she
had substituted a dead baby born to an actress named Edith Stanley for
Lottie's child. Lottie went to the authorities. Stella Barkley got word
that Lottie had shown up and fled St. Louis with "Dorothy". Stella and
the baby were stopped in Rock Island, Illinois, under a warrant for
kidnapping. On May 26, 1905, Lottie filed a writ of habeas corpus in
circuit court in Rock Island declaring her right to the child, and on
July 14, 1905, Circuit Court Judge Emery C. Graves found Lottie to be
the mother of the infant and awarded her custody. She left Rock Island
with the baby she had named Marion Roberta Bleakley and traveled back
to Douglas County, Kansas, where they settled in Lawrence. Stella
Barkley and her husband filed an appeal in Illinois, but did not wait
for the outcome and traveled to Kansas. On September 5, 1905, they
filed a writ of habeas corpus in Douglas County District Court alleging
the baby was being held by Lottie due to a judgment in Illinois in
which she had lied about being the baby's mother. By this time the
controversy over the parentage of the now famous Incubator Baby was
making national news, with reports on it appearing in newspapers across
the country. After hearing the case, Douglas County District Court
Judge Charles A. Smart ruled on January 25, 1906, that the adoption was
legal and awarded custody of the child to the Barkleys, giving Lottie
six hours in which to surrender the baby. While a deputy sheriff waited
in the Bleakley home, Lottie slipped out the back door with Marion in
her arms and escaped on a train. The story is that someone posed as a
police officer who supposedly had her under arrest, and by this
subterfuge she and the child were conducted safely back to Rock Island,
where she felt safe because the court there had found her to be the
child's mother and had awarded her custody. Hours after Lottie had fled
Lawrence with the child, an appeal was filed in Kansas on Judge Smart's
decision, and in July of 1906, the Kansas Supreme Court found that
Judge Smart had erred, reversed the decision, and issued a writ of
mandamus for Lottie to have another trial, which apparently never
occurred. Lottie and her daughter Marion lived in Rock Island until the
Barkley's appeal of the earlier decision by Judge Graves made its way
to the Illinois Supreme Court. On April 10, 1907, the court reversed
the decision by Judge Graves, finding that the best interests' of the
child would have been for it to have been left with the Barkley's, and
that they should have custody. Lottie again bundled up Marion and fled
back to Kansas before the Illinois authorities could enforce the
decision. In an article published in late spring of 1908, it was noted
that the Barkleys had spent $50,000 in their attempt to gain custody of
the child, in contrast to Lottie, in which "About $5,000 has been
contributed to help her by public subscription", and that "Several
famous Kansas lawyers have handled Mrs. Bleakley's case free of
charge." It seems that public opinion was on the side of Lottie, who
was seen as fighting a wealthy family trying to buy its way to a
favorable outcome in court. Not content with the decision of the Kansas
courts, Stella Barkley did not give up her attempts to get Marion away
from Lottie. Sometime in the winter of 1908/1909 there was an attempt
to kidnap Marion when the family was in Sedan, Kansas, but it failed.
There is no indication of who was responsible for the attempt, but
subsequent events lead to the conclusion that Stella was behind it. In
August of 1909, she arranged with a detective named Joseph Gentry to
help her take Marion away from Lottie. Lottie and Marion were living in
Topeka, and on the morning of August 21st, the young girl was being
cared for at Lottie's home by her grandmother Ora Thompson and a cousin
named Clarence Belknap. At around 11:00 a.m., there was a knock on the
door, and when Ora answered it, she found a woman who said that she was
selling perfume. She asked for permission to come in and show her
wares, but when Ora refused her entry, she forced her way in, and at
the same time called to a man who broke in the rear door of the house.
Clarence confronted the man, who then knocked Clarence to the floor
with a blow to the head from a revolver, opening a nasty cut across his
temple(4). Ora grabbed Marion and rushed upstairs, going into a bedroom
and locking the door behind them. The man forced the door open and tore
the screaming child from her grandmother's arms. He held the revolver
on Clarence while he and the woman took Marion out the back door. They
boarded a buggy waiting in the alley behind the house, and a third man
in the driver's seat lashed the horses and the buggy sped off, with
Marion screaming all the way. Despite his injury, Clarence ran after
the fleeing kidnappers until he lost sight of them. Someone with an
automobile took off in pursuit, but was unsuccessful in catching up to
the fleeing party. They eventually boarded a Chicago, Burlington &
Quincy Railroad train heading east. Two detectives named Frank Lyngar
and Charles Lewis, who were accompanied by several Topeka police
officers, boarded the train in Kansas City late on the 21st and found
Marion in the possession of the detective James Gentry and Stella
Barkley. Marion was put into protective custody. Stella was quoted as
saying she was trying to get to Missouri because she had the adoption
papers she had originally taken out in St. Louis in 1904, and that "If
I thought for one minute there was a drop of Mrs. Bleakley's blood in
the child I wouldn't have her for an instant. But I know to whom she
belongs. She is the child of an actress. And, by the way she is the
exact picture of her." She was also quoted as saying this was the last
attempt she would make to get the child. Lottie arrived in town on the
22nd, but was prevented from taking Marion home until a court could
make a decision as to who had the right to take her. Stella filed two
writs of habeas corpus, one to prevent Lottie from taking Marion and
the second to prevent herself from being returned to Topeka for trial.
The habeas corpus writ that prevented Lottie from taking Marion was
dismissed, and the mother and daughter were reunited. The attempt by
Stella and the two detectives who helped her kidnap Marion to keep from
being sent back were not successful. All three were brought back to
Topeka for trial. Joseph Gentry was convicted of kidnapping and the
assault on Clarence Belknap during the kidnapping, and F. H. Tillotson,
the other detective, was convicted of kidnapping. Both were sentenced
to from one to five years in the Kansas State Penitentiary in Lansing.
Stella Barkley was scheduled to be tried for kidnapping, but before the
case when to trial, the charge of kidnapping was dropped around October
19, 1910, following an agreement between Lottie Bleakley and Stella
Barkley. Presumably, the agreement was that Stella would stop trying to
take Marion from Lottie in exchange for the charges against her being
dropped. A disagreement between the Kansas Supreme Court's decision in
favor of Lottie Bleakley and the Illinois Supreme Court's decision in
favor of Stella Barkley eventually made its way to the United States
Supreme Court, who on January 20, 1914, dismissed the case in favor of
Lottie retaining custody of Marion. The decision, made less than a
month before Marion's 10th birthday, gave Lottie permanent undisputed
custody of her daughter. On November 5, 1925, Marion married Dewey W.
Brown of Holton, Kansas, in a ceremony in St. Joseph, Missouri, and
became Marion Brown, coincidentally the same last name that Deaconess
Hospital had given her when they had "acquired" her from Mrs.
Merrifield. The marriage did not last however, and by 1930 she was the
divorced head of a household in Topeka that included Lottie and
Marion's two-year-old daughter Grace. What were the fates of Marion and
Grace after that is not known, but Lottie died in 1977 and was buried
in Topeka Cemetery.
(1) Her name is spelled Merryfield in some
(2) She was not the only baby in the exhibit, and so not the only
incubator baby at the fair. It is unclear whether she became "The
Incubator Baby" while she was in the incubator exhibit or later during
the subsequent custody controversy.
(3) Her name is spelled Barclay in some accounts.
(4) Some later accounts incorrectly have Clarence having been shot.
From: Thompson, Robert, 1880 U.S. Census, Guelph
Township, Sumner County, Kansas, 6/1-2/1880; Thompson, Ora, 1900 U.S.
Census, Leavenworth, Leavenworth County, Kansas, 6/8/1900; Joseph Bleakley,
William G. Cutler's History of the State of Kansas, Leavenworth County,
Part 41; Bleakley, Joseph J., 1900 U.S. Census, Reno Township,
Leavenworth County, Kansas, 6/1-2/1900; In Her Place: A Guide to St.
Louis Women's History, by Katharine T. Corbett, Missouri Historical
Society Press, St. Louis, 1999, pp. 183-185;
Barclay v. People, 132 Ill. App. 338; Lawrence Daily World, v. 18, no.
157 (August 21, 1909), p. 1; Lawrence Daily World, v. 18, no. 158
(August 23, 1909), p. 3; Lawrence Daily World, v. 18, no. 159 (July
[August] 24, 1909), p. 1; Lawrence Daily World, v. 18, no. 160 (August
25, 1909), p. 1; Evening Kansas-Republican, v. 31, no. 218 (September
3, 1909), p. 1; Salina Daily Union, v. 13, no. 113 (October 22, 1910),
p. 14; The Leavenworth Times (May 12, 1912), p. 2; The Evening Star, v.
14, no. 198 (January 21, 1914), p. 5; Marian
Roberts Bleakly (Topeka, Kansas) married Dewey W. Brown (Holton,
Kansas) - November 5, 1925, St. Joseph, Buchanan County, Missouri,
FamilySearch website; and, Brown, Marion, 1930 U.S. Census, Topeka,
Shawnee County, Kansas, 4/24/1930.
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