Abolishing Juries of Matrons

Abolishing Juries of Matrons Abstract This article explores the last fifty years of the jury of matrons, a special type of jury used in England and Wales until the middle of the twentieth 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 ten per cent of cases in which women were sentenced to death during the first three decades of the twentieth 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. 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 thirteenth 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 nineteenth 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 nineteenth century, abolition did not come until 1931, when an MP, drawing on a lifetime of 1 9 & 10 Geo V c 71, s 1. 2 Sara M Butler, ‘Pleading the Belly: a sparing plea? Pregnant convicts and the courts in medieval England’ in Sara M Butler and Krista J Kesselring, Crossing Borders: boundaries and margins in medieval and early modern Britain – essays in honour of Cynthia J Neville (Brill 2018) 138. 3 James Oldham, Trial by Jury: the seventh amendment and Anglo-American special juries (New York: New York UP, 2006) 80-114. 1 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 twentieth century more generally, with a particular focus on debates about the death penalty,4 changing ideas of the jury’s purpose,5 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 twentieth 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-nineteenth and early-twentieth 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 ten per cent of all trials in which a woman was sentenced to death between 1900 and 1931, albeit in a way which 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 twentieth century. First, it can be understood as simply one part of the changing nature of jury trial and of the jury system. Right up until the end of the nineteenth 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 4 See, e.g., Lizzie Seal, Capital Punishment in Twentieth-Century Britain: audience, justice, memory (Routledge 2014). 5 See, e.g., WR Cornish, The Jury (2nd edn, Penguin: Harmondsworth 1971). 6 See, e.g., Anne Logan, Feminism and Criminal Justice: a historical perspective (Basingstoke: Palgrave Macmillan, 2008); Anne Logan, The Politics of Penal Reform: Margery Fry and the Howard League (Routledge 2018); and Daniel JR Grey, ‘Women’s Policy Networks and the Infanticide Act 1922’ (2010) 21 Twentieth Century British History 441. 7 Oldham, Trial by Jury, 111-112. 8 6 Geo IV c 50, s 1. 2 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 which 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 which had previously existed--juries which 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 twentieth 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 which 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 nineteenth century the 9 In simple terms, this meant satisfying the property qualification (cited in the previous footnote). For a more detailed account, see Kevin Crosby, ‘Restricting the Juror Franchise in 1920s England and Wales’ Law and History Review [forthcoming]. 10 Crosby, ‘Restricting the Juror Franchise’. On the shifting nature of criminal law jurisdiction based on local territories, see Lindsay Farmer, Making the Modern Criminal Law: criminalization and public order (Oxford: OUP, 2016) 118-138; and Nicola Lacey, In Search of Criminal Responsibility: ideas, interests, institutions (OUP 2016) 112-113. 11 Brad Beaven and John Griffiths, “Creating the Exemplary Citizen: the changing notion of citizenship in Britain 1870-1939” Contemporary British History 22 (2008) 203-225. 12 23 & 24 Geo V c 36. 13 6 Geo IV c 50, s 31. 14 12 & 13 Geo VI, c 27, ss 18-19. See generally the discussion in Cornish, The Jury, 33-35. 3 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.

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