JURY OF WOMEN. A jury of women is given in two cases ; viz. : on writ de ventre inspiciendo, which was a writ directed to the sheriff, commanding him that, in the presence of twelve men and as many wo men, he cause examination to be made whether a woman therein named is' with child or not, and if with child, then about what time it will be born, and that he certify the same.
The jury has to be one of "discreet wo men." The practice was to close the doors before the jury was impanelled. See 8 Carr. & P. 265, where a surgeon was sent out with the jury; on his return to the court he was sworn and made his report. The jury then retired and brought in a verdict.
It was granted in a case when a widow, whose husband had lands in fee-simple, mar ries again soon after her husband's death, and declares herself pregnant by her first husband, and, under that pretext, withholds the lands from the next heir ; Cro. Eliz. 506 ; Fleta, lib. 1, c. 15. In that case, al though the jury was made up of men and women, the examination was made by the latter ; 1 Madd. Ch. 11; 2 P. Wms. 591. Such a writ was issued in the case of In re Blackburn, 14 L. J. N. S. Ch. 336. In New York it is said that an application was made for such a jury in the Rollwagen will case and denied upon the ground that "as the lady was not going to be hanged and did not herself solicit the investigation, there was no power to compel her to submit to it ;" 10 Alb. L. J. 3. In the opinion of the court in Union Pac. Ry. Co, v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734, the state ment is made by Mr. Justice Gray that this writ has never been used in this country. The authorities cited in this title show that this statement is too broad both as to the use of the common-law writ and as to physical eceamination, which title see further as to that case.
Where pregnancy is pleaded by a con demned woman, in delay of execution, a jury of twelve discreet matrons was called from those in court, who were impanelled to try the fact and report to the court. They chose a fore-matron from their own number. On their returning a verdict of "enceinte," the execution was delayed until the birth, and in some cases the punishment was commuted to perpetual exile. When the criminal was merely privement enceinte, and not quick (see QUICKENING) , there was no respite. See 2 Hale, Pl. Cr. 412; Taylor, Med. Jur., Bell's ed. 520; Archb. Cr. Pl. 187. The proceeding has been said to be obsolete. though it has been recognized in America and at a very recent date in England, in Reg.
v. Webster, tried before Lord Denman at the Old Bailey in London July, 1879. The plea of pregnancy was interposed before sentence, and immediately "a jury of ma trons selected from a crowd of females in the gallery were impanelled" and sworn, and the inquisition was held forthwith before the judge. The result was a verdict that
the prisoner was not quick with child and she was sentenced. The verbatim report of the •proceedings may be found in 9 Cent. L. J. 94. In State v. Arden, I: Bay (S. C.) 487, the plea was allowed and an inquisition held, but the prisoner was found not pregnant and sentenced to death. In Holeman v. State, 13 Ark. 105, the plea was overruled in a lar ceny case where a woman was convicted of a penitentiary offence. In the case of Mrs. Bathsheba Spooner, who was tried in Massa chusetts in 1778 for the murder of her hus band, she being under sentence of death, petitioned the governor and council for a respite on account of pregnancy. A writ de ventre inspiciendo was issued by the council to the sheriff directing him to summon a jury of two men midwives and twelve discreet and lawful matrons "to ascertain the truth of her plea." The verdict was that she "is not quick with child," and she was exe cuted, but a post mortem examination proved that her assertion was true ; 3 Harv. L. Rev. 44 ; 39 Aib. L. J. 326.
"While the cases are very rare, there is no evidence (or authority, it might be add ed) that a jury of women is not a part of the machinery of the law in those states in which the common law prevails." 12 A. & E. Encyc. of L. 331. Such a jury was impanel led in a criminal case in Chester county, Pa., June 27, 1689; 5 Haz. Pa. Reg. 158; Records of Upland Court now in the Pennsylvania Historical Society. See 48 Am. L. Rev. 280.
It may be safely affirmed that no woman who pleads pregnancy in delay of execution will in any common-law jurisdiction be sen tenced to death without examination into the truth of the fact pleaded, and in the absence of other statutory provision, it is difficult to see how she could be deprived of this common-law right. It is undoubtedly true that the proceeding is antiquated and ill adapted to the purpose, and therefore the subject is well worthy of legislative atten tion. Doubtless the rarity of such legisla tion is due to the infrequency of capital tri als of women. In one state at least the con tingency is provided for. In New York it is provided by statute that if there is reason able ground to believe that a female defend ant sentenced to death is pregnant, a jury of six physicians she'll be impanelled to in quire into the fact, and if it is found by the inquisition that she is "quick with child," the execution is to be suspended until the governor issues a warrant directing it, which he may do as soon as he is satisfied that she is no, longer "quick with child," or he may commute her punishment to imprison ment for life; N. Y. Code Crim. Proc. §§ 501— 2. See DE VENTRE INSPICIENDO ; REPRIEVE.