THE JUDICIAL PROCESS
Criminal cases were first brought before one or more justices of the peace or magistrates – the terms are interchangeable – at Petty Sessions courts, which were held as and when the need arose and which were usually convened at a local community venue such as a public house, or occasionally at a magistrate’s home. For more serious cases, magistrates could send the case up to Quarter Sessions, which, as their name implies, were held every quarter (January, April, July and October), usually in the county town. These were presided over by county magistrates and further differed from Petty Sessions in that presented cases were heard first before a Grand Jury (a body of influential propertied men who decided if a case should proceed to trial – a system that also applied to the higher court of Assizes and which was not abolished until 1933), and then before a jury of twelve selected men.
In cases where the magistrates felt that they were unqualified to deal with the complex or serious nature of a crime (such as murder) defendants could be imprisoned for an often considerable period to await trial at the next County Assizes, which were presided over by State-appointed judges and which normally took place twice a year, usually in the county town, at Lent (March/April) and Trinity or Summer (July/August). London’s equivalent to the Assizes was the Old Bailey. A third Assize court – the Winter Assizes– could also be held if warranted by pressure of number of cases waiting to be tried in any particular year.
Court would have convened in the county's Shirehall referring to the primary administrative and judicial building of a “shire” or county. These grand structures were the epicenters of local power, where courts of law convened, county governance was conducted, and the fate of individuals and communities was often decided.
Sally Poppy's trial would have been held in the Norfolk shirehall in the capital city of Norwich. Below is an image of that building. Today it is a museum.
The 39 historic counties of England
(click to enlarge)
In Act One, Scene 3, Coombes says he comes "from the assizes" and that the "Justice calls for a jury of matrons." He is referring to this assize court, and that the traveling judge is responding to a guilty woman "pleading the belly." That term is explained below.
The system of Petty Courts and Assize Courts was first used in England after the Norman Conquests of 1066. It lasted, largely unchanged, until the Sheriffs Act of 1877, which consolidated more power in the crown, and redefined the responsibilities of some county officials. The system was not officially disbanded until the 20th century.
THE PEOPLE
JUDGE- Judges in this time period were either magistrate judges specific to a county, or one of the roving judges for more serious matters sent to the Court of Assizes.
SHERIFF- Fun fact to start. The name sheriff comes from “shire-reeve,” the reeve or chief officer of the shire. A shire is a traditional British division of land, roughly equivalent to the American county.
In England the office of sheriff existed before the Norman Conquest (1066). The separation of the ecclesiastical from the secular courts under William I the Conqueror left the sheriff supreme in the county and as president of its court. He convened and led military forces of the shire, executed all writs, and, for the first century after the Conquest, judged both criminal and civil cases. Once King Henry II began increasing and centralizing royal power, the sheriff's role was to investigate allegations of crime from within his shire, to conduct a preliminary examination of the accused, to try lesser offenses, and to detain those accused of major crimes for the itinerant justices.
BAILIFF- Bailiffs had two distinct roles in this time period. The title was used for the administrator of a manor as well as a person with a role in the judicial process. He was appointed by the King and generally considered subsidiary to a sheriff if a county had both. More information can be found in this 1811 document, written by a former London bailiff.
JURY-The first reference to the jury in criminal cases is in the Constitutions of Clarendon in 1164 where, in the case of a layman so rich and powerful that no individual dared appear against him, it was provided that, ‘the sheriff shall cause 12 loyal men of the neighborhood to take an oath in the presence of the bishop that they
will declare the truth about it.’ This eventually developed into a public process of trial in the name of the king for heinous crimes including murder, theft, robbery, arson and forgery. It replaced the old system where a defendant could swear their innocence and collect a series of character witnesses to attest to their credibility--all without actually speaking to the crime itself.
JURY OF MATRONS- one of three special types of juries convened to evaluate facts requiring knowledge of some special non-legal field There are medieval cases recorded of self-informing juries of cooks and fishmongers in London summoned to try people accused of selling bad food, and many instances of mercantile disputes
being settled by merchants of the trade in question.
The jury of matrons was convened to determine the truthfulness of a convicted woman claiming to be pregnant. Courts used the all-female jury for reasons of decency and because they viewed the women concerned as experts in identifying the signs of pregnancy. Ideally, the matrons would be midwives. More commonly, most were women with personal experience of pregnancy, perhaps assisted by one or two midwives if they were fortunate.
The other most common use of a Jury of Matrons was a witchcraft trial, where the group would inspect the body of someone convicted of being a witch for physical markings and other indicators.
Juries were assembled through two different practices: the sheriff seeking out the participants, or in some cases where finding women willing to serve would be difficult, holding trial participants and visitors in the courtroom following a conviction and "insisting" that appropriate matrons become part of the panel. Once empaneled, many historical records indicate they could not leave until a verdict was rendered.
A witchcraft trial in the Hertford Court of Assizes in 1712
An 18th-century illustration of a jury of matrons © The Trustees of the British Museum via Wikimedia Commons
PLEADING THE BELLY
Ordinarily the jury of matrons was impaneled in one of two contexts. In civil cases, the matrons decided whether a widow was with child by her late husband, a question affecting the inheritance of the husband's estate. On the criminal side, a stay of execution would be granted to a female defendant who had been sentenced to death but was found to be pregnant.
Pleading the belly required a two-part determination: whether or not a woman was pregnant, and whether that fetus was developed enough to move in the woman's womb. For most of the time the practice existed, only the latter was enough to earn a convicted woman a reprieve in a death sentence.
The examination was conducted by a Jury of Matrons. Matrons is commonly understood to mean (married) women who have had children--and thus able to understand the signs. History shows conflicting reports on whether or not a midwife was required, but as the leading expert on pregnancy into the 18th century, they were often included when present in the county. As legitimate medical knowledge became more common in the late 18th and 19th centuries, the practice of empaneling a Jury of Matrons waned
ELIZABETH: Let us vote again. Them as can see the proof in this glass and believe Sally to be with quick child, raise your hand.
DR. WILLIS: Do you understand the difference between being quick with child and being with quick child? ...Quick with child is having conceived. With quick child is when the child is quickened, or moving.
In the book Wicked Ladies : Provincial Women, Crime and the Eighteenth-Century English Justice System, Gregory J. Durston writes that "Historically, the right to ‘plead the belly’ had mitigated some of the harshness of the criminal law for women, particularly the death for felony rule. As a result, before women could claim clergy on the same terms as men (in 1692) and when, as in the late seventeenth century, reprieves for those who were capitally convicted were more unusual than a century later, the matrons were sometimes very generous when conducting the test.
During the course of the eighteenth century the matrons employed at Assizes appear to have become increasingly strict when applying the test, and claims were made less frequently. This was particularly marked after 1718, when capitally convicted women could be reprieved on condition of transportation, encouraging clemency from the Crown for capital convicts, and further reducing any need to use the fiction of pregnancy to circumvent draconian laws. As a result, there was a steady reduction in the number of women who succeeded with such a plea."
INCLUSION OF A DOCTOR. The Welkin accurately portrays the role of a physician in the deliberations, although the role became more common in the 19th Century. Once a stethoscope could be used to listen for a heartbeat, other tests of pregnancy were seen to be irresponsible and overly prone to errors.
Lucy Kirkwood also takes dramatic license to ensure that the capture, trial, and conviction of Sally Poppy coincides with the March Assizes. This was obviously not always the case. Defendants were often held in prison for much longer periods of time.
internal examination of a woman, circa 1800
References to pleading the belly can be found in multiple writings of the late 17th and 18th centuries. Starting in 1698 with Frenchman M. Misson's book on his observations and travels through England, and ending in 1727 when John Gay finished writing The Beggar's Opera, 62 percent of all women sentenced to death pleaded pregnancy, and of these, 61 percent were successful before juries of matrons. For one five year period, 1714-1719, during which Gay was walking the streets of London and Daniel Defoe was writing Moll Flanders, ninety-two of the 112 females sentenced to death-an astonishing 82 percent-pleaded their bellies. The peak year was 1716, in which all twenty-four-100 percent-of the women sentenced to death pleaded pregnancy, eighteen of them successfully.
-James C. Oldham, Georgetown University Law Center,
"On Pleading the Belly: A History of The Jury of Matrons"
published in Crime, Police, and the Courts in British History
THE BENEFIT OF CLERGY
"In English law, benefit of clergy was a provision by which clergymen could claim that they were outside the jurisdiction of secular, royal courts and should be tried instead in an ecclesiastical court under cannon law. Through this mechanism, many defendants found guilty of certain felonies were spared the death penalty and given a lesser punishment (Briggs et al, 1996; Sharpe, 1999).
Benefit of clergy arose from medieval disagreements on many issues between the Church and the monarchy (Sharpe, 1999). As part of and during these disagreements, the Church claimed that its own courts had jurisdiction over the clergy. One significant difference between the two was that unlike the lay courts, Church courts did not have the power to impose the death penalty. The term ‘clergy’ included practically every minor (male) official associated with the Church, as well as priests and bishops.
To claim that one was part of the ‘clergy’ and thus able to claim benefit of clergy, all a man had to do was read a passage from the Bible, normally the opening verse of psalm 51. This verse became known as the ‘neck verse’ since many people evaded the death penalty through being able to read it (Emsley et al, 2016).Over time, it was assumed that every literate adult male could claim benefit of clergy for a first offence (Briggs et al, 1996). Those granted benefit of clergy, instead of being sentenced to death, would have the letter ‘M’ (for murderer) or ‘T’ (for thief) branded on the palm of his left hand or his thumb to prevent recidivism."
-from A Companion to the History of Crime and Criminal Justice,
edited by Jo Turner, Paul Taylor, Sharon Morley, and Karen Korteen
Other legal trends in the 18th century include:
-An overall increase in acquittals. Juries needed to return unanimous verdicts, and when only one or two people were undecided they began opting to "bend toward mercy" and go with the rest of the group rather than stay overnight in the jury chamber without food or heat. The fact that the death penalty remained, and the benefit of clergy was greatly reduced, added to the trend.
-Jury nullification. Juries increasingly returned verdicts of not guilty, weighing the severity of the penalty and reacting if it seemed proportionally too harsh. An alternative remedy seen by many juries was a partial verdict, only convicting on some of the alleged crimes.
-Pious Perjury. Juries, with the consent of the Judge, reduced the value of stolen goods in order to avoid overly harsh sentences
-Prior to the 19th Century, imprisonment was rarely a sentence unto itself. The accused were held until trial, but the most common felony sentences were death or transportation, either to the American colonies or Australia.
-The number of executions of female prisoners typically ran much lower than male prisoners, often between 9-15%. It was also more common for a woman to be sentenced to death by the Assizes than at the Old Bailey court in London.
-Burning as a means of carrying out a death sentence was largely reserved for treason (until abolished in 1797). For other felonies, prisoners were hanged. In provincial areas, bodies might be provided to doctors for medical study after death.
(facts above all courtesy of A History of Criminal Justice in England and Wales by John Hostettler)
FOR MORE INFORMATION
If, like your humble dramaturg, there is no such thing as too much nerdy information, you might enjoy the following longer reads.
Wicked Ladies : Provincial Women, Crime and the Eighteenth-Century English Justice System
by Gregory J. Durston
Chapter Two is most relevant to us (and is the one linked here)
"A Jury of Matrons" by Thomas R. Forbes