Before women were permitted, from 1920 onwards, to serve on the grand and trial juries which were responsible for the final determination of a person’s guilt or liability, they had occasionally been empanelled on “juries of matrons”. The most common reason for such a jury to be put together was if, on being convicted of a crime which carried the death penalty, a woman pleaded that she was pregnant. Unwilling to take two lives for a single person’s crime, the law then needed to know whether the woman was “quick” with child (whether she really was pregnant and, as a proxy for viability, whether the foetus had started to move – if the answer to either of these questions was “no”, the woman’s pregnancy plea would fail). When a woman facing a sentence of death pleaded pregnancy, an all-female jury of “matrons” (generally, older women who were expected to have had some practical experience with pregnancy) would be put together. Because, prior to the Sex Disqualification (Removal) Act 1919, women were not ordinarily entitled to serve on juries, a pregnancy plea would be swiftly followed by the court’s officials locking all the doors in order to trap the women in attendance. As with jury service generally, the presumption was that few people would volunteer to serve on a jury of matrons. Once empanelled, the matrons would retire into a private room with the prisoner, in order to carry out a physical examination. As late as 1906, the matrons responsible for examining Carrie Thomas at the Cornwall assizes conducted this examination themselves; although by the early twentieth century the usual practice was for them to hear expert evidence from a doctor. Even before this practice was universally followed, the Home Office might follow an unfavourable verdict of the matrons with reports from prison doctors, in order to give the prisoner the benefit of the doubt. But despite these moves towards a prioritisation of professional medical knowledge, the matrons always retained a right to carry out an independent examination; although by the early twentieth century it was unusual for them to exercise this right. While a pregnancy verdict technically only postponed an execution, in practice the sentence was always commuted to life imprisonment (which, in turn, generally meant about five to ten years in prison). Government was often lobbied, both by concerned members of the public and by politicians such as Ray Strachey and Lady Astor, to inform the prisoner as quickly as possible that her sentence would be commuted, and to consider dropping altogether the cruel formality of a sentence of death which the lawyers – though not necessarily the prisoner, her friends, or her family – knew had no prospect of completion. A major turning point came in 1931, with the trial and conviction of Olive Wise (pictured above). Mrs Wise had determined that her only hope lay in the workhouse and, having asked her landlady to sell her possessions in order to cover her unpaid rent, she had sent her fourth illegitimate child to live with his father, Alfred Wheatley. When she got to the workhouse, however, Wise was told to come back the next day, when the institution’s administrators expected to be less busy. On returning home, she found that Mr Wheatley had delivered the child to Wise’s mother, who had in turn returned the child to Wise herself. Wise suffocated her son in her landlady’s gas oven, before immediately visiting her neighbour in order to confess. After her conviction at the Old Bailey, a jury of matrons, drawn from the existing pool of female jurors, heard medical evidence and found that she was seven months pregnant with another child of Mr Wheatley’s. The judge sentenced her to death, postponing execution until after the birth of her child; and three days later, the Home Office officially commuted her sentence to life imprisonment. Following the Wise case, the MP Edith Picton-Turbervill (also pictured above) brought in a Private Member’s Bill for the abolition of the death penalty for pregnant women. Her legislation would bring the law in the books into line with the practice of the courts, ending the misleading expectation of an execution which was never going to happen. The Bill passed its first reading easily, and the Home Office quickly sought to persuade the Prime Minister, Ramsey Macdonald, to take it on as a government Bill. The Prime Minister was reluctant – what if he set a precedent and was also expected to take on the Rubber Industries Bill, or one of any number of other Private Member’s Bills? Picton-Turbervill eventually managed to prevail upon him with an appeal to realpolitik:
Both men and women desire the passing of this Bill. If however you would care to satisfy a large number of the organised Women’s Societies, at what would be very little cost of Government time, this is an opportunity to do so.
Picton-Turbervill was right. The Bill, drafted in its final form by government lawyers, passed both Houses swiftly, and almost without parliamentary comment. The Sentence of Death (Expectant Mothers) Act 1931 ended the formal recording of the death sentence on pregnant women found guilty of capital crimes, and brought English law in line with Scottish law by extending this rule to all women, regardless of whether “quickening” had yet occurred. It put a reverse burden of proof on the prisoner, requiring her to prove her pregnancy, and in so doing it formalised the existing procedure’s de facto medicalisation. The jury must now reach its verdict solely on the basis of the evidence submitted to it, and not on the basis of its own independent investigations. Finally, the Act abolished the jury of matrons itself. A jury would still determine the pregnancy issue, following a special plea by the prisoner after conviction, but the jury would no longer be made up exclusively of older women with a presumed experience with pregnancy. Rather, the prisoner’s trial jury would be used, a jury which, following the Sex Disqualification (Removal) Act 1919, might sometimes include some women. — This is a guest written piece by Kevin Crosby, a lecturer in law at Newcastle University and First 100 Years Champion. He is currently working on a project, funded by the British Academy/Leverhulme Trust and Newcastle University, exploring the use of female jurors in 1920s England.