Abolishing Juries of Matrons

Abstract

This article explores the last 50 years of the jury of matrons, a special type of jury used in England and Wales until the middle of the 20th century to secure reprieves for pregnant women sentenced to death. Despite claims that the jury of matrons had fallen out of use by the middle of the Victorian era, such juries were used in over 10% of cases in which women were sentenced to death during the first three decades of the 20th century. Exploring the circumstances in which the jury of matrons was abolished in 1931 can help us see how various important parts of the contemporary criminal justice system of England and Wales developed. In particular, it allows us to see in greater detail how ideas of the jury and of capital punishment were changing at this time, and how important political networks were in securing legislative reforms.

1. Introduction

In 1919, women were for the first time permitted to sit on grand and trial juries in England and Wales.¹ This was not the first time they had sat on juries in this jurisdiction, however. Since the 13th century, women had occasionally been empanelled on special juries of ‘matrons’;² and while most of the matrons’ functions had been abolished by the late 19th century, they were still required where a woman who had been convicted of a capital crime pleaded that she was pregnant. If the matrons found that the prisoner was indeed pregnant, her execution would be reprieved (and in practice commuted). This is where the most significant analysis on the institution in its modern form ends.³ This article goes further than this by tracing the circumstances in which the institution was eventually abolished. It finds that, despite the existence of a well-worn series of critiques that had been used since at least the middle of the 19th century, abolition did not come until 1931, when an MP, drawing on a lifetime of political networks, took it upon herself to compel the government to act. By carefully tracing through this story, new light will be shed on the nature of criminal justice reform in the early 20th century more generally, with a particular focus on debates about the death penalty,⁴ changing ideas of the jury’s purpose⁵ and the important role that organised women’s organisations played at this time in modernising English criminal law.⁶

The most detailed study into the modern jury of matrons reports that the institution did not need to be formally abolished, having fallen into disuse by the middle of the Victorian era.⁷ In fact, juries of matrons were still used during the 20th century, with at least two such juries having been empanelled after 1919. This article explores the function and then the abolition of the jury of matrons between the late 19th and early 20th centuries; and its starting point is that the institution had not fallen completely out of use. Rather, it can be shown that juries of matrons were used in over 10% of all trials in which a woman was sentenced to death between 1900 and 1931, albeit in a way that appears to have relied much more on formal medical evidence than on the presumed expertise of its members.

The end of the jury of matrons is connected to other, broader shifts in the nature and functioning of the criminal justice system of England and Wales in the first half of the 20th century. First, it can be understood as simply one part of the changing nature of the jury trial and of the jury system. Right up until the end of the 19th century, the jury was a socially very stratified institution. Ordinary trial juries, for instance, were exclusively made up of adult men who owned or occupied property rated at a certain value.⁸ Beyond this, there were a range of other types of jury, which were made up of people who could be distinguished on the basis of their social status, their expertise or, in the case of the jury of matrons, their sex. Between 1919 and 1949, this system was fundamentally changed from two directions. First, the qualifications of ordinary jurors were expanded, restricted and regularised. In 1919, qualified women were added to the lists of people who could serve on juries.⁹ Over the next three years, this expansion in the franchise was followed by a series of restrictions, limiting jury service to those who were registered to vote (making it more directly a function of citizenship, and in the process excluding foreigners, conscientious objectors and some women). Jury service was also standardised through the abolition of the right that certain towns had previously enjoyed to select their jurors without reference to the property qualifications.¹⁰ Jury service, as with citizenship more generally, was being reimagined at this time as something that must be capable of standardisation, of being reflected in clear, consistent, positive rules, rather than in flexible, and potentially regionally divergent, practices.¹¹

Shortly after the jury franchise had been reconstituted in this way, the various special kinds of jury that had previously existed—juries that reflected an idea that certain parts of the community had a distinct interest in certain kinds of jury work—were systematically dismantled. In 1933, the grand jury was abolished.¹² Grand juries were in practice, even if not in law, made up of higher-status individuals than the trial jury; and their role by this time was primarily that of checking that an indictment was valid. In 1949, the special jury—which was made up of people ‘described … as an Esquire, or a person of Higher Degree, or as a Banker or Merchant’¹³—was also abolished except in the City of London.¹⁴ The jury of matrons forms a further part of this general story of the early-20^th-century jury in England and Wales: of a system which followed the broad reconstitution of its qualification rules with the abandonment of almost all kinds of jury other than the standard trial jury.

A further general story that the abolition of the jury of matrons helps to illuminate is the gradual abolition of the death penalty. As we shall see, by the middle of the 19th century the matrons had lost all of their functions except one: to secure a reprieve (and in practice a commutation of sentence) for a woman who had been found guilty of a capital crime, but who subsequently pleaded that she could not be executed owing to her pregnancy. One of the earliest criticisms of the older system of criminal law—referred to by its critics as the ‘bloody code’—was that it produced a great deal of uncertainty, and that any just legal system should be clear and consistent in its operation.¹⁵ What we will see below is that the jury of matrons was also vulnerable to this complaint: that by requiring a person to be formally sentenced to death in circumstances where everyone except the prisoner herself knew that no execution would ever take place the legal system acted in an unnecessarily cruel way. We will also see how the institution’s eventual abolition in the 1930s was engineered by an MP who used her connections with organised women’s movements and the Labour Party—and in particular her connections with those who were politically predisposed towards the abolition of the death penalty—to secure reform. The abolition of the jury of matrons, then, is also an important, if generally overlooked, moment in the political history of death penalty abolitionism in the UK, and of the ways in which rule-of-law arguments were used by those who sought an end to capital punishment.

2. An Introduction to the Jury of Matrons

Writing in his Institutes of the Laws of England, the 17th-century judge and politician Edward Coke had explained that prospective jurors could be challenged for four main reasons: ‘first, Propter Honoris respectum, for respect of honour [specifically, if somebody was a peer]; secondly, Propter Defectum, for want or default; thirdly, Propter Affectum, for Affection or partialitie; fourthly, Propter Delictum, for crime or delict’.¹⁶ In other words, somebody should not serve as a juror if they knew the parties or had a serious criminal past, or if there was something in their social status (including questions of sex) that meant it would not be proper for them to serve. Building on Coke’s taxonomy a little over a century later, the judge and academic William Blackstone explained the relationship between a person’s status and their eligibility to serve as a juror in the following way:

Propter defectum; as if a juryman be an alien born, this is a defect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be liber et legalis homo. Under the word homo also, though a name common to both sexes, the female is however excluded, propter defectum sexus … But the principal deficiency is defect of estate, sufficient to qualify him to be a juror.¹⁷

As various historians of the jury have noted, the jury was, for most of its history, very exclusive. Whereas parliamentary electors for county MPs, for example, had to have freehold worth 40 shillings, the Juries Act 1825 set the property qualification for jury service at five times this amount;¹⁸ and local administrative discretions were frequently able to be used in order to secure the ‘right’ kind of juror.¹⁹ Until 1919, this exclusivity also included a general ban on women serving as jurors. The only exception was the jury of matrons: a special type of jury whereby the general ineligibility of women was overcome by the need to ask a group of older women—with their presumed expertise in such matters—whether a woman who claimed to be pregnant was telling the truth.

For most of their history, the matrons could be used in one of two contexts. The first was where a woman sought to argue that her dead husband’s property should not pass to one of his other relatives, as she was pregnant with his child. If the matrons found that she was pregnant, the child, rather than some other relative, would be entitled to inherit. This first function became obsolete during the 19th century, following reforms to women’s right to hold property independently of their male relatives.²⁰ Secondly, a woman who had been convicted of a capital offence might assert that she should not be executed owing to her being pregnant. If the matrons found that the prisoner was indeed ‘quick with quick child’ (ie that the child had started to move in the womb), she would be imprisoned until after birth, and then (in principle at least) her execution would be carried out according to the original sentence.²¹ This second function of the matrons was still used in England as late as 1931.

Oldham found different patterns in the practices involved in uses of the jury of matrons during the 18th and 19th centuries, with the differences largely depending on whether the matrons had been required in a civil or a criminal case. In civil cases, where the paternity issue would have been anticipated well before the trial commenced, the sheriff was tasked with summoning a jury of 12 knights and 12 matrons. The matrons would then—at least according to the terms of the writ—inspect the woman in the presence of the knights and the sheriff. When the writ specifying this procedure was issued ahead of a trial in 1835, the Medical Gazette deplored it as ‘disgustingly indecent’ (something which connects with concerns the following century about the propriety of making men and women discuss potentially shocking cases together on a mixed jury).²² But as Oldham notes, it does not seem that the knights and the sheriff tended to literally be in the room with the matrons while they carried out their investigation.²³ Indeed, even the matrons may not always have been present. By 1730, a litigant was able to request an inspection by two midwives rather than an examination by a jury of matrons, and by the early 19th century this had become standard practice.²⁴

In criminal trials, the fact that there was generally no advance notice of a pregnancy plea in criminal cases (as there was no need to make such a plea until after conviction) meant that the matrons were haphazardly collected from among the older women who happened to be nearby. And even when medical experts were used to supplement that matrons’ assessment of the pregnancy or otherwise of the prisoner (something that did not always happen even in the 20th century), they also had to be identified in something of a hurry, using whichever doctors happened to be in the vicinity. By the early 19th century, the practice of locking the doors to the court once a convicted woman claimed she was pregnant had developed, in order to stop anyone from escaping before they could be empanelled.²⁵ This was no longer necessary once women were included on jury panels after 1919.

3. The Final 50 Years of the Jury of Matrons

By the end of the 19th century, juries of matrons were only used in the context of murder convictions. As various historians of the criminal law have noted, there was already by the 17th century some evidence of a successful pregnancy plea leading not only to a reprieve, but to the sentence of death never being carried out, replaced by the 18th century by a sentence of imprisonment.²⁶ This is still how things stood in the early 20th century, in the institution’s final few decades, although as late as 1902 the Home Office did not feel confident in describing this as a rule or even a standard practice. When a query was sent from the government of Victoria, asking whether ‘it is customary to carry out the sentence after the birth or whether it is usual to commute the same’,²⁷ Home Office notes simply observed that ‘cases are so rare that it can scarcely be said there is any practice in the matter, but … it is exceedingly improbable’ that a death sentence would not be commuted in such circumstances.²⁸ As we shall see, however, the institution was regularly used during the 20th century, and still occupied a place in the popular imagination.

Oldham’s account of the final few decades of the jury of matrons suggests that it virtually disappeared after the 1879 conviction of Kate Webster, who, on being found guilty of murder, pleaded that she was pregnant. Expert medical evidence was sought, and Justice Denman—who stated that ‘after thirty-two years in the profession, he was never at an enquiry of this sort’—directed the matrons that the relevant legal question was not whether Webster was pregnant, but whether she was quick with quick child (we shall return to this issue when we come to look at common criticisms below). This ruling was criticised by medical writers as barbaric, and Oldham reports that nothing more was heard of the matrons for 20 years, until 1913 and 1917, when in two cases medical evidence was submitted to the matrons and pregnancy findings were made in accordance with the doctors’ expert testimony. Oldham concludes by noting that the matrons in the end simply fell into disuse:

As a part of the customary law of England that had been called into play rarely since the mid-18th century and hardly at all since the early 19th century, it did not become necessary formally to abolish the jury of matrons or to replace it with a more modern procedure … In England, the jury of matrons died a natural death of obsolescence.²⁹

The jury of matrons was certainly unusual by the beginning of the 20th century in terms of absolute numbers; and it is also true that whenever it was used it was met with the kind of surprise that Justice Denman had expressed when he presided over such a jury in 1879. Indeed, the 1879 jury of matrons was regarded as noteworthy as far away as Australia.³⁰ But the 1913 and 1917 juries of matrons were not in fact the only uses of the institution in 20th-century England, and the institution did not simply die off naturally. Rather, as we shall see, its death in 1931 was the result of careful political work, drawing on a lifetime of political networks, by one of the earliest women MPs. What, then, did the jury of matrons look like in the half-century before its final abolition?

The first thing that must be noted when we come to examine the institution’s final decades is that its rarity was a little overstated. When a jury of matrons was empanelled at Leeds in 1918, a local newspaper commented that ‘[t]he situation is rare, but it is provided for in law … Probably such a scene has never before been witnessed in the history of Leeds Assizes’.³¹ When Justice Jelf ordered a jury of matrons in 1904, he commented that ‘such a jury was not necessary on the average once in 10 years’.³² In fact, in the preceding quarter of a century, between 1879 and 1904, there were at least seven juries of matrons: an average of one approximately every three and a half years. Between 1900 and the institution’s abolition in 1931, at least 11 juries of matrons were empanelled, which is again an average of approximately one every three years. And the 11 uses of a jury of matrons during the 20th century become even more significant once it is borne in mind that only 87 women were sentenced to death in England and Wales between 1900 and 1929.³³ In other words, the institution was still being used in approximately 13% of cases in which women were convicted of murder, even in the 20th century. Indeed, when Frederick Bywaters and Edith Thompson were convicted in 1922 of the murder of Thompson’s husband (in one of the most high-profile trials of the 1920s),³⁴ there was some speculation that Thompson would resort to the jury of matrons in order to secure a reprieve.³⁵ She did not do so, but the fact that it was even suggested indicates that people were still aware of the possibilities the institution offered.

Table 1 is based on information collated by the Home Office, in response to a request by the MP Edith Picton-Turbervill (see below). The Home Office’s research did not include information on the 1879, 1880, 1889, 1902, 1904, 1926 or 1931 uses of the jury of matrons. It also did not record the location of the trial or the use of medical evidence. By combining the Home Office’s table with newspaper reports held in online newspaper archives and the records of Old Bailey trials (available online up to 1913),³⁶ it has been possible to identify 17 uses of the jury of matrons in England between 1879 and 1931. In one of these trials—held at Liverpool in 1902—a jury of matrons was empanelled after the prison doctor reported that the prisoner had claimed she was pregnant ahead of her trial. It transpired that the doctor had misunderstood the prisoner, and so the matrons, having been sworn in, were immediately discharged. In another case—at Nottingham in 1894—the judge declined to order a jury of matrons. When the prisoner’s counsel asked for the sentence of death to be reprieved until after the birth of the child, Cave J replied that ‘he did not know that he had power to do that without going through the old-fashioned form of empanelling a jury of matrons. He understood that the Home Secretary had power to deal with the case.’³⁷ This is the only example I have been able to identify of a judge refusing to empanel a jury of matrons, but it is nonetheless possible that differing local practices may have altered how frequently the institution was used in different places. It is possible, for example, that local knowledge was important in any use of the institution, and that once one pregnant woman was made aware of the procedure, others also started to use it. Two juries of matrons were used in Leeds in 1918, for example, with a further one in nearby Manchester the following year.

Little is known about who the matrons were, and indeed, during this period—prior to 1919—they all appear to have been summoned using the de circumstandibus procedure, which was sometimes used to supplement ordinary trial jurors.³⁸ While it is unclear how they had arrived at this information, the Belfast Morning News, for example, claimed that the 1879 jury of matrons empanelled at the Old Bailey included some of the ‘wives of the jurors who have just been discharged, and thus they are made “to pay the penalty of their curiosity in being present”’.³⁹ Beyond this, we know very little about who the women who served on juries of matrons actually were, in terms of their social status and so on. Named lists are available of the women who served on juries of matrons in 1862,⁴⁰ 1871,⁴¹ 1886,⁴² 1906,⁴³ 1913,⁴⁴ 1914⁴⁵ and 1917,⁴⁶ but such lists can take us only so far. It would be impractical to attempt to piece together any further information about these women in the absence of information such as their addresses, which could then be used in order to match them to local tax records, for example. This is exactly the kind of information that would be available on local juror lists—but women were not included on such lists prior to 1919. It is also not possible to say very much about the women who served on either of the two juries of matrons I have identified after 1919, because of the places where these trials took place. The 1926 trial took place in the North Eastern circuit, which did not record the names of any of its jurors in its assize records at that time.⁴⁷ The 1931 trial took place at the Old Bailey, and at the time of writing the relevant Old Bailey records were only available for consultation up until 1926.⁴⁸ So, even if we could find lists of women registered as jurors in the relevant places and at the relevant times,⁴⁹ this would tell us nothing about the particular women who served on these last two juries of matrons. Beyond the presumption that they would be older, experienced women, it is very difficult to assess what kinds of people found themselves sitting on a jury of matrons in the final half century of the institution’s existence.

One final point may be made about the practical life of the institution, based on the information collected here. As has already been noted, the early 20th century was a period in the jury’s history in which the presumed expertise of special types of jury was coming under question. What can be seen by looking at the various examples of juries of matrons between 1879 and 1931 that have been identified is just how regularly such juries made use of medical evidence. In 10 out of 15 cases, the matrons were not expected to rely on their presumed expertise, but were given the advantage of medical evidence. In the remaining five cases, only one (a 1906 trial at the Cornwall assizes) can be confidently identified as an example of the matrons not relying on medical evidence. Even here, it is likely that the prisoner was obviously pregnant,⁵⁰ so it may be that a pragmatic decision was taken that no expert evidence was required. But despite the regular use of expert witnesses in practice, the jury of matrons was still regularly criticised for its inexpert, haphazard nature. It is to these long-standing criticisms—which were insufficient for the institution to be abolished without the intervention of Edith Picton-Turbervill in 1931—that we shall turn in the next section. Was the jury of matrons, which seems to be have been used in over 10% of cases in which a woman was convicted of a capital crime, generally considered to be a positive feature of the criminal trial system of England and Wales?

4. Objections to the System

By the middle of the 19th century, the jury of matrons was widely regarded as an exceptional, archaic institution that was rarely resorted to in practice. We have already seen that arguments regarding the institution’s rarity do not entirely match the available evidence. In this section, we shall explore more general objections to the system, objections which converged around three main points: first, that the women who were caught through the de circumstandibus procedure (ie the practice of empanelling whichever older women happened to be at court when the doors were locked) lacked the necessary medical expertise; second, that the requirement for ‘quickening’ before a reprieve could be granted relied on an view of pregnancy that was not supported by medico-legal writers; and third, that requiring a death sentence to be formally recorded at all—even one that was quickly reprieved and then commuted—was needlessly cruel. For all three of these reasons, it was regularly suggested that the jury of matrons should be abolished. But, as we shall see, these criticisms were insufficient on their own to secure the institution’s abolition. The jury of matrons was simply not considered a legislative priority until 1931,⁵¹ when Edith Picton-Turbervill took steps to secure reform.

A. Medical Expertise and the Expertise of the Matrons

While all juries were originally supposed to have some knowledge of the facts of the case they were trying, this presumption was gradually replaced in most contexts by the presumption that a jury’s task was to impartially assess the evidence presented at trial.⁵² The jury of matrons was somewhat different, however, and the oath taken by its members emphasised that they were still presumed to have expert knowledge of their own. In 1867, the Royal Commission on Oaths, Affirmations and Declarations recorded the oath taken by the members of a jury of matrons as follows: ‘You … shall well and truly try whether the prisoner at the bar be with child of a quick child, and thereof a true verdict give according to the best of your skill and understanding.’⁵³ This was notably different to the oath taken by trial jurors, which took the more familiar form of swearing to ‘a true verdict give according to the evidence’.⁵⁴ It is possible, however, that this appeal to expertise was more a question of form than of surviving practice.

The matrons were, in principle, expected to retire into a private room with the prisoner to carry out an independent—and authoritative—physical examination. But by the late 19th century, the Home Office tended to give the prisoner the benefit of the doubt, often following an unfavourable verdict with reports by prison doctors.⁵⁵ And while, as late as 1906, one jury of matrons appears to have carried out this examination itself,⁵⁶ by the early 20th century it was standard practice for them to hear expert evidence from a doctor. What was involved here was a shift in the concept of expertise, from the presumed expertise of the matrons towards the scientific credentials of the prison doctor. This was a shift that was taking place within jury systems more generally at this time: as Howlin has observed in the context of special juries in Ireland, ‘[b]y the 20th century, the expertise role of the special jury had in some ways been subsumed by the increased role played by expert witnesses in trials’.⁵⁷ And as Burney has noted regarding coroners’ inquests into anaesthetic deaths, by the early 20th century it was felt that ‘juries were at best incompetent to deliberate on questions that were to them … “Absolute Greek”’.⁵⁸

While there is no mention of ‘expert’ evidence in books on English law until the late 18th century,⁵⁹ experts had actually appeared centuries earlier. In the criminal courts, medical experts were supplying evidence on the causes of death of specific individuals by at least 1678;⁶⁰ and by the 18th century they had become a regular feature at the Old Bailey. Loughnan has noted that expert evidence had become a regular feature of infanticide trials in England and Wales by the 19th century, but that this was achieved in a way that continued to recognise the lay understandings of mental disorder that would ultimately be applied by the jury;⁶¹ and similar tensions can be detected in the later history of the jury of matrons. By the middle of the 19th century, the jury of matrons was regularly attacked for its amateurism. The jury of matrons arguably represented a form of expertise distinct from that of the medical professions (which were being reorganised at this time as a community that was only open to men),⁶² and was regularly attacked for its presumed amateurism. In 1832, for example, the London Medical Gazette complained that the existing system left the prisoner’s life in the hands of ‘such female stragglers and idlers as chance finds present in a criminal court on such an occasion’.⁶³ Such criticisms suggested the matrons were acting in ignorance of scientific evidence; but by the time the institution was abolished in 1931, doctors had been assisting them for over a century. In 1809, for example, an Old Bailey jury of matrons was joined from the outset by a surgeon,⁶⁴ and by the 1830s the matrons could request medical assistance after they had already started their examinations.⁶⁵ Sometimes these doctors (who were also selected on the basis of who could be found quickly—in practice, this generally meant using the prison doctor)⁶⁶ examined the prisoner separately and subsequently gave their evidence in court, but at other times they retired with the matrons, having first been formally sworn in as witnesses.⁶⁷

When, in 1931, the Home Office asked the clerk of the Old Bailey whether the prisoner is generally in the room when the medical expert delivers evidence to the matrons, he explained that ‘so far as I am aware the jury have not retired … but have remained in court and heard the evidence of a doctor. I know of no case in which a doctor has retired with the jury.’ Asked whether the matrons may speak to the prisoner directly, he replied ‘No, except possibly on retirement under the old system, or if she gives evidence herself under the modern system.’⁶⁸ All of this suggest that, by the time the institution was abolished in 1931, the jury of matrons was no less scientific than any other jury, deliberating on the basis of whatever evidence the trial judge decided they were entitled to hear in open court. As we shall see, one of the consequences of the abolition of the jury of matrons in 1931 was that this presumption—that the jury’s role was restricted to applying evidence that had been found by other people—was crystallised in statutory form. At first sight, this could all appear fairly incongruous: why would the jury of matrons continue to be criticised for its inexpert nature when it was in fact routinely in receipt of expert evidence? My suggestion would be that this is a fairly clear example of critical rhetoric not being tied sufficiently closely to the practical realities of that criticism’s object. Furthermore, it suggests that issues surrounding expertise—important though they no doubt were—cannot be sufficient to explain why the institution was eventually abolished.

B. Rules Concerning ‘Quickening’

In his discussion of the jury of matrons, Blackstone explained that

if they bring in their verdict quick with child (for barely, with child, unless it be alive in the womb, is not sufficient) execution shall be staid generally till the next session; and so from session to session, till either she is delivered, or proves by the course of nature not to have been with child at all.⁶⁹

He went on to specify that this was a single-use way to gain a reprieve: if the prisoner became pregnant again before her execution, she would not be entitled to a second reprieve.⁷⁰ Matthew Hale, whom Blackstone had cited in support of his argument, offered a different explanation. According to the 17th-century judge, a second reprieve should have been possible

[i]f in truth she were not with child with a quick child at the time, when the jury gave their verdict, but became quick after, nay tho she were not at all with child then, but became with child before the time of the second session with a quick child.⁷¹

Hale’s version emphasises that it was the quickening itself—in other words, detectable movement within the womb—that was key, not the question of whether a woman had previously been reprieved by the matrons.

In Scotland, the concept of ‘quickening’ had not had this formal significance for some time. In 1765, a small panel of midwives had been empanelled in place of a jury of matrons. This panel simply presented evidence on pregnancy—and not specifically on quickening—to the court in order to inform the court’s sentencing decision.⁷² The editors of Cobbett’s State Trials, reporting on this trial in 1816, actually suggested that this practice could be dated back to 1658; but they conceded that ‘[t]his is on authority of the abridgement of the records, in the Advocate’s Library; for the original record has perished’.⁷³ Kennedy has noted that the influence of the ‘common sense’ school of philosophy led Scottish judges to rebuff any significant reliance being placed on expert medical evidence in the context of mental disorder: they ‘classified rationality as a matter falling within the realm of common understanding and therefore properly amenable to lay assessment’.⁷⁴ By ceding the question of pregnancy to a panel of midwives, the assumption may have been that this was properly a question for experts. By abandoning the quickening requirement, the implication may have been that this was not only a question for lay people to determine, but was also not a question to be set about by too many tightly defined legal rules.

Howlin discusses an 1841 case in Ireland in which a judge rebuked a jury of matrons for drawing a formal distinction between quickening and mere pregnancy. The judge told the matrons that

[t]his is the first time I ever heard of it being refused to find a woman quick with child who was pregnant. It is not a question of nice medical science; and if you say she is pregnant that will do.⁷⁵

This suggests that in Ireland the quickening requirement may simply have been removed as a pragmatic response to changing views on the nature of pregnancy. In any event, Howlin also notes that this trial appears to have been the last time that the jury of matrons was used in Ireland.⁷⁶

There do not appear to have been any judges in England who encouraged their jurors to abandon the legal distinction between pregnancy and quickening. Indeed, while Lord Hewart (the Lord Chief Justice) was broadly in favour of abolishing the institution in 1931, he was nonetheless concerned that a woman might still escape a death sentence by finding means to become quick with quick child by the time of her trial.⁷⁷ Meanwhile, the Home Office seems by the late 19th century to have found a workaround for the obvious injustice of a woman being executed simply because her pregnancy had not yet reached a sufficient stage of development. Where the matrons found that quickening had not yet occurred, prison doctors would send regular updates to the Home Office, with a reprieve issued once the doctors certified that quickening had happened. This practice, of course, emphasised that the ‘quickening’ requirement retained its legal status in England.

This basic legal test sat awkwardly next to Blackstone’s assertion that a second jury of matrons was impossible, however. Indeed, the notes to the draft criminal code of 1845 criticised what it took to be Hale’s rule against a second jury of matrons, arguing that it was ‘contrary to the principle upon which the woman is respited … viz, tenderness towards the innocent infant’.⁷⁸ This criticism suggests that the drafters of the code may only have read Blackstone’s gloss on Hale’s comments, rather than having engaged directly with Hale. These comments may also reflect, as Oldham has suggested, a view that a sharp distinction between a pregnancy that had reached ‘quickening’ and one that had not was no longer completely tenable.⁷⁹ In any event, there was clearly some uncertainty about the precise operation of the quickening rule. And, as we have already seen in the discussion of medical expertise and we shall see again in the discussion of the death penalty, the haphazard nature of the institution was a more general cause for concern.

C. The Unnecessary Cruelty of a Formal Death Sentence

Capital punishment had been successfully challenged in many contexts during the 19th century via—in part—the argument that most people sentenced to death were never actually executed, and that it was cruel to insist on formally recording a sentence of death when an execution was never really going to happen. Beccaria had argued as early as the late 18th century that certainty was more important than severity if the criminal law was ever going to actually change people’s behaviour;⁸⁰ and this concern was translated in an English context into an argument in which ‘the law is criticized for brutality … and for disproportion’.⁸¹ This critique was followed by a general move away from capital punishment, and by the late 19th century most women found by a jury of matrons to be pregnant were imprisoned rather than executed, even after they had given birth. In 1879, for example, one newspaper had suggested that the inevitable outcome of a pregnancy finding by a jury of matrons was ‘to be respited for some months, and so long a respite is rarely followed by an execution. The tender-hearted British public does not care to execute a woman who has recently become a mother.’⁸² Reformers were not satisfied with this state of affairs, however, and argued that it was cruel to maintain a legal structure that required a sentence of death to be formally recorded for such women (especially as they may not be aware of the difference between the declared sentence and the likely reality).⁸³

Judges also seem to have been sensitive to the cruelty of formally recording a death sentence that was very unlikely to actually be carried out. Edith Picton-Turbervill claimed in her 1939 autobiography that she had known of judges who abhorred the need to formally record a sentence of death in such cases, adding that a

certain benevolent judge so disliked performing his dreadful duty that he begged the woman not to listen to a word he had to say, and then mumbled the death sentence in such a way that even if she had listened she would not have heard!⁸⁴

Contemporaneous newspaper reports specifically record that the judges in two trials that went on to use juries of matrons—one in 1913⁸⁵ and the other in 1917⁸⁶—declined to don the traditional black cap when recording the mandatory death sentence. (Of course, it is possible that judges also did so in other trials.) By dispensing with some of the formality, these judges were most likely attempting to convey the unreality of the sentence they were required by law to record. And when the Home Office consulted the Lord Chief Justice on the proposal to abolish the formal recording of a death sentence along with the jury of matrons, he observed that ‘I feel sure that all Judges would be glad to be relieved of the ordeal of passing sentence of death in such cases’.⁸⁷

In 1906, following the infanticide conviction of Carrie Thomas, Carl Heath (the honorary secretary of the Society for the Abolition of Capital Punishment) wrote to various local newspapers calling for the abolition of capital punishment in such cases. He noted with approval the London Tribune’s recent argument that the jury of matrons was systematically cruel and unfair, owing to the ultimately fictional recording of a sentence of death:

A reprieve has now been granted [in Carrie Thomas’s case], and in this cumbrous fashion it has been found possible to do what from the first every consideration of humanity made it obvious must be done. Our law has not kept pace with the growth of humane feeling amongst us, and so when an exceptional case of this kind occurs we must perforce subject it to a method of more than mediæval cruelty.⁸⁸

There is evidence that it was this type of concern, rather than issues regarding the ‘quickening’ test or the lack of expertise among those women and doctors who could be found at short notice, that ultimately led to the system’s abolition. Having described ‘how grim and terrible is the scene’⁸⁹ where a prisoner is formally sentenced to death, Edith Picton-Turbervill noted in her autobiography that ‘[i]t was intolerable—inhuman—that all this should be suffered when it was known that the execution would not take place’.⁹⁰ As we shall see shortly, the jury of matrons was eventually abolished owing largely to the efforts of this one MP, and so her words here can perhaps be taken as a guide to some of the motivations behind the legislation. This does not mean that the role of expertise and the status of the quickening test were not also important, but without this aspect of the critique it is unlikely that Picton-Turbervill would have pushed for reform when she did.

5. Repeal and Replacement

None of these criticisms, long-standing though they were, were sufficient to secure reform; and as late as 1923, a Home Office official was able to write that ‘the occasion for a jury of matrons arises so rarely that any amendment of the law cannot be regarded as urgent’.⁹¹ One year earlier, another part of the legal rules surrounding the death penalty had been removed via the passage of the Infanticide Act, which abolished the death penalty for any woman who killed her newborn child when ‘she had not fully recovered from the effect of giving birth to such child, and by reason thereof her mind was then disturbed’.⁹² This reform succeeded where earlier attempts had failed, and saw women’s policy networks successfully using the momentum created by a high-profile trial.⁹³ This is almost exactly what would happen a decade later, in order for the jury of matrons to be abolished. A major turning point came in 1931, with the trial and conviction of Olive Wise. 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 Wheatley had delivered the child to Wise’s mother, who subsequently returned the child to Wise herself. Wise, unable to cope with the situation she now found herself in, suffocated her son in a gas oven, before finding a 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 Wheatley’s. Three days later, the Home Office commuted her sentence of death to one of life imprisonment.⁹⁴

Following the Wise case, the MP Edith Picton-Turbervill 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 that 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. Macdonald was reluctant, but Picton-Turbervill eventually managed to prevail upon him by suggesting that supporting her Bill could make the embattled government more popular with various organised women’s groups. The abolition of the jury of matrons, therefore, was only made possible through an appeal to the personal networks that Picton-Turbervill had built up over her previous decades of religious and political work.⁹⁵

In some respects, Picton-Turbervill can usefully be compared to Margery Fry, the founder of the Howard League for Penal Reform. Discussing Fry in terms that could equally well apply to Picton-Turbervill, Logan has explained that:

Her ‘easy access to many important people’ was a definite asset in her work for penal reform. Yet, notwithstanding her relatively privileged upbringing and education, this was not an automatic attribute. Rather, she devoted a great deal of time and energy to cultivating useful contacts …⁹⁶

When the jury of matrons was abolished in 1931, it was not the automatic result either of a lack of business for the tribunal or of the persuasiveness of the arguments in the medical journals. Rather, it is another example of the role that political networks had in many of the major reforms to the criminal justice system that took place during the first half of the 20th century.⁹⁷

Edith Picton-Turbervill (1872–1960) came from a family of South Wales gentry but, like Margery Fry, she developed political networks of her own which went far beyond any simple familial connections. These networks allowed her to apply pressure on her somewhat reluctant Labour colleagues when, in 1931, she turned her attention to abolishing the jury of matrons. Having acted as a missionary in Glamorgan and in India,⁹⁸ she became a member of the YWCA’s organising committee, and was shortly thereafter nominated as a YWCA delegate to the National Council of Women.⁹⁹ In 1912, she had her first involvement in parliamentary work, joining the ‘Pass the Bill’ committee, which sought to get a new law against sex trafficking through Parliament.¹⁰⁰ During the First World War, she fundraised and organised food and accommodation for women munitions workers and tents for members of the Women’s Army Auxiliary Corps,¹⁰¹ and in 1917 she was part of the first cohort of people to receive an OBE.¹⁰²

Picton-Turbervill’s long-standing networks also extended to the Parliamentary Labour Party, a network which, as we shall see below, was crucial in her successfully persuading the government to adopt her Bill. In 1919, Margaret Bondfield persuaded Picton-Turbervill to join the Labour Party, and by Junee 1923 she had been selected as the party’s candidate for the North Islington parliamentary constituency.¹⁰³ She failed to dislodge the Unionist incumbent, and when a new election was held the following year she chose to campaign for Ramsay Macdonald rather than standing again herself. In the 1924 general election, Picton-Turbervill stood and lost in the Gloucestershire seat of Stroud, and in 1925 she became the Labour candidate for the Wrekin, in Shropshire. When the next general election was held, in 1929, she finally secured a place in Parliament. When, in August 1931, the Labour Prime Minister Ramsay Macdonald joined the Liberals and the Conservatives to form a National Government, Picton-Turbervill, like the vast majority of Labour MPs, refused to join him. And like the vast majority of Labour MPs, she also lost her seat in the general election of October 1931.

Viewed from the outside, Picton-Turbervill’s achievement in succeeding in abolishing the jury of matrons during her brief time as an MP could seem straightforwardly heroic: she succeeded where generations of critics had failed. Following her success in steering her Bill through its first reading, the Sunday Times enthused that ‘without exploiting any of the ordinary arts of oratorical persuasion, [she] was able to thrill the House to a greater sense of corporate responsibility than it has experienced since Mr Baldwin’s famous plea for “Peace in our Time”’.¹⁰⁴ The Yorkshire Daily Post, meanwhile, suggested that

If in some heavenly court Members have to justify what they have said and done in the House, Miss Picton-Turbervill will have more grace shewn her because of that one speech, than many a famous and consummate Parliamentarian will for the speeches of his whole career.¹⁰⁵

Picton-Turbervill had in fact been working with the Home Office behind the scenes for months, drawing on her close political links with the Labour Party’s leadership.

Picton-Turbervill had initially proposed ‘one clause … merely giving the expectant mother an opportunity to state the fact [of her pregnancy] immediately after the verdict, and if correct recognising it as a cause why the death sentence should not be pronounced’.¹⁰⁶ Realising that such a provision might leave little room for the continued existence of the jury of matrons, however, she subsequently asked the Home Office to gather information for her about the frequency with which the jury of matrons was used, and the exact procedure that was followed. Picton-Turbervill’s general view of the institution was that it was a ‘very out of date system’, ‘formulated before doctors were attached to every prison’;¹⁰⁷ and having contacted the Old Bailey for procedural information, the Home Office broadly agreed with her assessment. They reported that:

At the present day, the jury of matrons proceeds upon medical evidence, and … the practice is that such evidence is given in court in the ordinary way, and no one who is already in court is sent out. In these circumstances, there seems nothing to be gained by empanelling a special jury of matrons, and nowadays when women serve on trial juries it seems clearly more suitable from every point of view that the trial jury should determine on the evidence before it the question whether or not the woman is pregnant.¹⁰⁸

As we have already seen, one of the ways in which the institution of the matrons was regularly criticised towards the end of its existence related to its relationship with expert evidence. This same range of issues can be seen in the conversations between Picton-Turbervill and the Home Office, which form much of the background to the institution’s eventual abolition.

Picton-Turbervill realised that her Bill stood little chance of becoming law unless the government formally adopted it: the Committee for Private Members’ Bills was simply too busy, and it may not have been returned for a third reading before Parliament was dissolved for a new election.¹⁰⁹ In her autobiography, she claims to have written the Prime Minister a letter exhorting him that ‘my Bill is not controversial I am quite sure it will not take up time if facilities are given. Everyone agrees with it’, and that she privately lobbied various members of the Cabinet.¹¹⁰ In fact, Cabinet minutes record her as appealing to an embattled government, never far away from a vote of no confidence, in a way that demonstrated her political nous. Her letter urged that

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 … I believe that Mr Clynes [the Home Secretary, and former leader of the Labour Party] is of the same opinion.¹¹¹

In other words, her Bill might be a painless way of passing a popular measure and of keeping those women’s organisations—which she had spent decades working with, so knew very well—on side.

What Picton-Turbervill does not mention here—although it is perhaps implicit in her letter to the Cabinet—is that many such organised women’s groups had been campaigning for the total end of the death penalty at least since the execution of Edith Thompson eight years earlier,¹¹² and that the Labour Party itself had recently advocated for total abolition.¹¹³ Indeed, it is clear that the Home Secretary had been working closely with Picton-Turbervill throughout, as we have already seen; and he noted in his own representations to Cabinet that ‘the Private Member’s Bill had been drafted in the Home Office’, and that he also ‘was being pressed by the Women’s Organisations’ to make provision for the Bill.¹¹⁴ When, two weeks later, Picton-Turbervill had still not had confirmation from Clynes that the government would be adopting her Bill, she wrote him a short note complaining that

It is important to me to know exactly how the … Bill stands. I have been told again + again that it has been “starred” by the Government. It appears … this has not been the case. May I hear from you exactly how it stands.¹¹⁵

By combining her knowledge of various political groups and drawing on what was clearly a great deal of access to those at the top of her party, she was able to successfully pressure the government into adopting her Bill. The Bill, redrafted by government lawyers, passed both Houses swiftly once the government finally agreed to adopt it, and did so almost without parliamentary comment. This does not mean that the reform went by unnoticed, however: the Lord Chancellor, Viscount Sankey, wrote to Picton-Turbervill to congratulate her on ‘an achievement of which any member might be proud … Judges will be grateful to you for removing an abomination from the Statute Book.’¹¹⁶

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 required evidence to be heard in court regarding pregnancy, and in so doing it formalised the existing procedure’s de facto medicalisation. The jury now had to reach its verdict solely on the basis of the expert evidence submitted to it, and not on the basis of its own independent investigations. Finally, and most significantly for our purposes, 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. This presumed experience and expertise had long since vanished, and the law had now caught up with changing social realities. Rather, the prisoner’s trial jury would be used, a jury which, following the Sex Disqualification (Removal) Act 1919, might sometimes include some women. It should be noted, however, that trials for abortion, concealment of birth and other similar offences were just as likely during this period to have all-male juries as were juries generally, and that on average between 20% and 30% of trials at the provincial assizes had no women on the jury.¹¹⁷ This was a significant change from the system that had existed up until this point, in which a jury of women had been given a specific responsibility for determining the question of pregnancy.

It is difficult to ascertain how frequently the 1931 Act was actually used before the death sentence for murder was finally abolished in 1965. It is possible that the Home Office may have been unaware of some such cases—they only had a limited knowledge of 20th-century uses of the jury of matrons, after all—but Home Office files suggest the new procedure, of asking the trial jury to hear expert evidence about pregnancy before sentence was passed, was used only rarely. In 1936, the Government of Cyprus wrote to the Home Office asking for observations on their plan to pass provisions very similar to the 1931 Act. Internal Home Office discussions observed that

The proportion of cases in which execution will depend merely upon the issue of pregnancy will be very small and in nearly every case it will be possible to decide the question of execution without going further into the question of pregnancy.¹¹⁸

This may simply reflect the reality that by this stage executions were very rare,¹¹⁹ meaning that, in reality, there was no need to determine the question of pregnancy in the way set out under the 1931 Act. In 1952, however, a crossed-out note on a Home Office file mentioned that ‘There are some cases noted in paragraph 123 of the Criminal Memoranda attached’.¹²⁰ No such document is included in the file, however, and it has not been possible to identify a copy. So, while it can be said with certainty that some such cases came to the Home Office’s attention between 1931 and 1952, it is not possible to say anything more certain about the practical life of Picton-Turbervill’s Act between 1931 and the abolition of the death penalty for murder in 1965.¹²¹

6. Conclusions

This article started by correcting the assumption in the existing literature that the matrons had already fallen out of use by the late 19th century, and explored the circumstances in which the institution was actually used. It then went on to consider common objections to the system, including: the perceived inappropriateness of the practice of using laypeople to determine medical questions; the test the matrons had to apply (looking for ‘quickening’ rather than pregnancy); and the unnecessary cruelty of formally recording a death sentence, only for this sentence to later—and inevitably—be reprieved then commuted. In this way, criticisms of the jury of matrons were closely linked to arguments in favour of swift and certain punishment that had formed a more general part of the anti-death-penalty debates of the 19th century. Finally, this article explored the circumstances in which the jury of matrons was finally abolished in 1931, showing how this was not an uncontroversial example of legislative pruning, removing from the statute book a long-since-dead institution. Rather, it was a hard-won political achievement, in which the MP Edith Picton-Turbervill, responding to a particular case in which the matrons had been used, had drawn on a lifetime of accumulated political networks in order to bring about legal change.

The jury of matrons did not die a death of neglect. While I have been able to find few examples of it being used after 1919, it was still being widely discussed as a possible option in the case of Edith Thompson in 1922, and as late as 1931 it was still needed as a way of securing the commutation of Olive Wise’s death sentence. The potential criticisms of the matrons were well known since at least the middle of the 19th century, and despite occasional attempts at abolishing the system, it was not finally replaced until almost halfway through the 20th century. As Home Office officials had noted, repealing this part of the wider system of capital punishment was simply not a legislative priority. The fact that it took the energies and the political networks of Edith Picton-Turbervill in 1931 to finally draw the institution to a close underlines the fact that it did not simply stop being used, as Oldham has it: rather, it had to be taken seriously as a political target. And the precise politics of the institution’s abolition highlights, as various historians have noted, how important organised women’s networks were in securing reforms to the criminal justice system during the interwar period.

The abolition of the jury of matrons also sheds new light on various broader features of the criminal justice system in the first half of the 20th century. Juries generally were being standardised at this time, with a wider membership on trial juries being mirrored by the end of specialist or higher-status juries, such as the grand jury or the special jury. The jury of matrons offers a further example of this process, with the post-verdict work of an all-woman jury being replaced with a new task for the trial jury, a jury which might sometimes—but would not necessarily—include some women. A second longer-term issue in the criminal justice system that is further illuminated by considering the jury of matrons is the retreat of the death penalty, and its criticism on rule-of-law grounds. Just as the so-called ‘bloody code’ had been criticised a century earlier for threatening death but delivering uncertainty, the jury of matrons was widely criticised—including by Picton-Turbervill—for the cruel practice of formally sentencing a person to death in circumstances that everyone other than the person so sentenced knew had to be illusory. The jury of matrons in general, and its abolition in particular, has a lot to show us about the changing nature of the criminal justice system in the first half of the last century, and the way that that changing system relates to our own. But we miss all of this if we simply end our analysis by concluding that it fell out of favour. It is important that we understand how, and why, the institution was actively abolished in 1931.

Acknowledgement

I am grateful for the comments I received on earlier drafts of this paper at the Doing Women’s Legal History Conference, Institute of Advanced Legal Studies, October 2016, and at the 10th Gerald Gordon Seminar in Criminal Law, University of Glasgow, June 2018, as well as the comments received from the Journal’s two anonymous reviewers.

Footnotes