Who Decided Whether a Woman Was Pregnant? A Jury Assembled to Examine Her

When a woman sentenced to death claimed to be pregnant, the court could order a jury of women, usually twelve, to be assembled from those present and sworn to examine her and report whether she was carrying a child far enough advanced to be recognisable. If they found that she was, execution was postponed until after the birth, on the principle that the innocent child should not be killed for the mother's offence. The same mechanism was used in civil matters, most often in inheritance disputes where a widow claimed to be carrying an heir whose existence would change who inherited an estate, and in those cases the jury might be ordered to keep the woman under observation until the birth. The procedure was old, being recorded from the medieval period, and survived into the twentieth century in statute.

The composition was unusual in a system that otherwise excluded women entirely:

• •Married women or widows, since experience of childbearing was the qualification
• •Selected from those present in or near the court, which meant availability mattered more than anything
• •Sworn like any other jury and required to deliver a verdict
• •Sometimes including midwives, and frequently not including anyone with relevant expertise
• •Occasionally supplemented or replaced by surgeons as medical authority shifted
• •This was the only circumstance in which women served on juries in England before the twentieth century

The claim of pregnancy was made far more often than pregnancy occurred, which everyone involved understood. A finding of pregnancy bought months, and in that time a pardon might be obtained, a transportation order substituted or the case forgotten, so a woman facing execution had every reason to claim it and nothing to lose by a false claim. Records show women in prison seeking to become pregnant for that reason, which was widely known and remarked upon. Juries appear to have been sympathetic in many cases and returned findings that later proved wrong. The verdict's practical function therefore drifted away from determining a fact and towards providing a delay that the system tolerated, which is a recognisable pattern in legal procedures whose formal purpose and actual use diverge.

The procedure sits within an older tradition of assembling ordinary people to settle questions of fact that would now be referred to experts. Coroners' inquests empanelled juries to view bodies and determine cause of death, which they did without medical training for centuries. Juries of butchers, bakers or other tradesmen were assembled to judge the quality of goods in their trade. Juries of freeholders determined boundaries and rights of way from local knowledge. In each case the reasoning was that the relevant knowledge lay in the community rather than in any office, and the jury was the mechanism for extracting it. The shift towards expert testimony over the nineteenth and twentieth centuries replaced nearly all of these, which changed who counts as knowing something and moved a great deal of authority from the community into the professions.

Several developments removed the need for the procedure. Medical examination by qualified practitioners replaced lay assessment as obstetric knowledge and professional standing developed, and courts came to prefer the evidence of a doctor to the verdict of assembled women. The number of capital offences fell dramatically through the nineteenth century, which removed most of the occasions for it. Reliable tests for pregnancy arrived in the twentieth century and made the question one of fact rather than judgement. Legislation in England in 1931 abolished the procedure and provided that a woman found to be pregnant should have her sentence commuted rather than merely delayed, which was the substantive reform. Women became eligible for ordinary jury service in 1919, which removed the anomaly that had made this the only exception.

A jury of women was sworn to examine a condemned woman and report whether she was visibly pregnant, which postponed execution until after the birth. It was the only circumstance in which women served on English juries before the twentieth century. The claim was made far more often than the condition occurred, and the procedure's real function drifted towards providing a tolerated delay.