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Restricting the Juror Franchise in 1920s England and Wales

Published online by Cambridge University Press:  04 February 2019

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Abstract

This article argues that the juror franchise became more restrictive in the years immediately after the Sex Disqualification (Removal) Act 1919 had broadened the jury franchise so as to include some women. It argues that the subsequent restrictions on the jury franchise have not standardly been discussed in the literature on the twentieth century jury because of the lengths taken at the time to present these reforms as merely technical in nature. Only six months after the 1919 Act was passed, a dispute broke out at the Western assize circuit regarding the practice–apparently sanctioned in the Juries Act 1825–of towns which “possessed” their own assizes summoning jurors according to custom, rather than statute. In practice, this meant that the ten “assize boroughs” had not always observed the property qualifications when summoning their jurors. The judiciary eventually prevailed over the Home Office and a series of local officials, ending the assize boroughs' ability to ignore the property qualifications (which kept a disproportionate number of women off the jury). This reform brought its own problems, however, and brought into focus the expense involved in following the burdensome rules for identifying jurors as set out in the 1825 Act. The solution–basing juror qualification on electoral registration–excluded from jury service conscientious objectors, foreigners, and women who satisfied the property qualification rules but lived elsewhere with a male relative.

Type
Original Article
Information
Law and History Review , Volume 37 , Issue 1 , February 2019 , pp. 163 - 207
Copyright
Copyright © the American Society for Legal History, Inc. 2019 

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Footnotes

This research was funded by a British Academy/Leverhulme Trust Small Research Grant, and by Newcastle University's Faculty Research Fund. The author is grateful for the helpful comments on earlier drafts of this article delivered at the Osgoode Society Legal History Workshop in March 2016, and at the British Legal History Conference in July 2017. The author is also grateful to Judith Bourne, Mark Coen, Thomas A. Green, Conor Hanly, and Law and History Review’s three anonymous referees for their helpful comments on earlier drafts.

Article updated on July 26, 2022.

References

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21. Ibid., 30. On citizenship and political activity before the 1918 Act, see generally Moore, Francesca, “‘A Band of Public-Spirited Women’: Middle-Class Female Philanthropy and Citizenship in Bolton, Lancashire before 1918,” Transactions of the Institute of British Geographers 41 (2016): 149–62CrossRefGoogle Scholar.

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25. 7 & 8 Geo V, c64, s3, s4(3).

26. Ibid., s1.

27. Ibid., s4(3).

28. Ibid., s4(1).

29. 18 & 19 Geo V, c12, ss1-2.

30. See, for example, Beaumont, Caitriona, “Citizens not Feminists: The Boundary Negotiated Between Citizenship and Feminism by Mainstream Women's Organisations in England, 1928–39,” Women's History Review 9 (2000): 411–29CrossRefGoogle Scholar; McCarthy, Helen, “Parties, Voluntary Associations, and Democratic Politics in Interwar Britain,” The Historical Journal 50 (2007): 891–912CrossRefGoogle Scholar; and Breitenbach, Esther and Wright, Valerie, “Women as Active Citizens: Glasgow and Edinburgh c1918–1939,” Women's History Review 23 (2014): 401–20CrossRefGoogle Scholar.

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33. Mrs Corbett Ashby, “Why I am a Liberal Candidate: Thoughtful Points for Men and Women Voters,” Sheffield Independent (Sheffield), November 23, 1918, 4.

34. “Solid for Women Jurors: Opinions of the Leading Ladies of the Town,” Worthing Herald (Worthing), February 26, 1921, 1.

35. Ibid.

36. Tocqueville, Alexis de, “Democracy in America,” in Democracy in America and Two Essays on America, ed. Kramnick, Isaac and trans. Bevan, Gerald E. (London: Penguin, 2003), 320–21Google Scholar.

37. 7 & 8 Geo V, c 64, s 5.

38. Ronald McNeill MP, HC Deb 25 Jun 1917, vol. 95, col 74. It has been suggested elsewhere that citizenship generally was coming to be understood at this time to be closely allied to ideas of service: Gullace, Nicoletta F., “Christabel Pankhurst and the Smethwick Election: Right-Wing Feminism, the Great War and the Ideology of Consumption,” Women's History Review 23 (2014): 330–46CrossRefGoogle Scholar; and Moore, “‘A Band of Public-Spirited Women,’” 153.

39. 7 & 8 Geo V, c 64, s 9(2).

40. Harold Smith MP, HC Deb 26 Jun 1917, vol. 95, col 330.

41. Logan, “‘Building a New and Better Order,’” 707–8. It is this proposal that Millicent Garrett Fawcett and the Worthing politicians were responding to in the passages quoted from above, notes 4 and 34–35.

42. Logan, Anne, Feminism and Criminal Justice: A Historical Perspective (Basingstoke: Palgrave Macmillan, 2008), 86–95CrossRefGoogle Scholar.

43. See, generally, Crosby, “Keeping Women off the Jury.” Things seem to have been a little different at the Old Bailey, however: see Anwar, Bayer and Hjalmarsson, “Jury of Her Peers.”

44. See generally Logan, “‘Building a New and Better Order.’”

45. Niamh Howlin has noted that many of the centralizing institutions—notably public prosecutors and centralized constabularies—appeared in Ireland much earlier than in England: Howlin, Niamh, Juries in Ireland: Laypersons and Law in the Long Nineteenth Century (Dublin: Four Courts Press, 2017), 7Google Scholar.

46. See generally Prest, John, “Peel, Sir Robert (1750–1830),” in Oxford Dictionary of National Biography: Online Edition (Oxford: Oxford University Press, 2009)Google Scholar.

47. Robert Peel MP, HC Deb 19 Feb 1824, vol. 10, col 248. For the pre-1825 law of juror qualifications generally, see Oldham, James C., “The Origins of the Special Jury,” University of Chicago Law Review 50 (1983): 137–221, at 214–21CrossRefGoogle Scholar.

48. 4 & 5 W & M, c 24, s 15 (£10 annual value in freehold, copyhold, or ancient demesne); 3 Geo II, c 25, s 18 (£20 annual value for tenants on a long lease). Hay, Douglas, “The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century,” in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Cockburn, J. S. and Green, Thomas A. (Princeton, NJ: Princeton University Press, 1988), 311–13Google Scholar.

49. Gash, Norman, Mr Secretary Peel: The Life of Sir Robert Peel to 1830 (London: Longmans, 1961), 334–35Google Scholar.

50. See generally King, Peter, Crime, Justice and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000)Google Scholar; and Green, Thomas Andrew, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press, 1985), 267–317CrossRefGoogle Scholar.

51. See generally Farmer, Lindsay, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45,” Law and History Review 18 (2000): 397–426, at 405–6CrossRefGoogle Scholar.

52. 6 Geo IV c 50, s 1.

53. Ibid.

54. 33 & 34 Vict, c 77, s 7.

55. 6 Geo IV c 50, s 8. See also 6 Geo IV c 50, sch 1. For the creation of the electors’ lists, see 2 & 3 Will IV, c 45, s 54.

56. 6 Geo IV c 50, s 9.

57. Ibid., s 50 (emphasis added).

58. See, for example, Philips, David, “A ‘Weak’ State? The English State, the Magistracy and the Reform of Policing in the 1830s,” English Historical Review 119 (2004): 873–91CrossRefGoogle Scholar.

59. P. J. R. King, “‘Illiterate Plebeians, Easily Misled’: Jury Composition, Experience, and Behaviour in Essex, 1735–1815,” in Cockburn and Green, eds., Twelve Good Men and True, 259.

60. Hay, “Class Composition,” 319.

61. Howlin, Juries in Ireland, 109.

62. “East Riding Quarter Sessions: Chairman's Criticism of the New Jury Act. Mediæval Slave Driving,” Hull Daily Mail (Hull), January 3, 1923, 6.

63. Letter from J. St. L. Leslie (Clerk of Assize to the Western Circuit), June 5, 1920 (National Archives: HO 45/11071/383085/30), para 18.

64. Hay, “Class Composition,” 322–23. John Prest observes that, compared with the statutory bodies created in the early nineteenth century, which reported directly to central agencies, overseers could be regarded as “a byword for ignorance and in adequacy”: Prest, John, Liberty and Locality: Parliament, Permissive Legislation, and Ratepayers’ Democracies in the Nineteenth Century (Oxford: Clarendon, 1990), 3CrossRefGoogle Scholar. Compared with the parish constables they were replacing, however, the overseers could be considered an upgrade: Eastwood, David, Governing Rural England: Tradition and Transformation in Local Government 1780–1840 (Oxford: Clarendon, 1994), 226–29CrossRefGoogle Scholar. When, in the 1920s, the central government proposed taking responsibility for juror lists away from the overseers, the overseers’ representatives attempted to establish their professional bona fides by sending the Home Office a copy of one of their entrance examinations: The Association of Rate Collectors and Assistant Overseers (Incorporated), “Questions set for the Direct Final Examination in June 1921” (HO 45/11076/406592/32a).

65. Howlin, Juries in Ireland, 12.

66. Conor Hanly, “The Criminal Jury in Victorian England” (PhD diss., Yale University, 2013), 22–23.

67. Ireland, Richard W., “Putting Oneself on Whose Country? Carmarthenshire Juries in the Mid-Nineteenth Century,” in Legal Wales: Its Past, its Future, ed. Watkin, Thomas Glyn (Cardiff: Welsh Legal History Society, 2001), 69 n. 19Google Scholar. Eastwood, Governing Rural England, 215.

68. Beaven, Brad and Griffiths, John, “Creating the Exemplary Citizen: The Changing Notion of Citizenship in Britain 1870–1939,” Contemporary British History 22 (2008): 203–25, 208CrossRefGoogle Scholar.

69. Viscount Enfield, HC Deb 6 Apr 1870, vol. 200, cc 1414–1415.

70. Report from the Select Committee on Special and Common Jurors (July 7, 1868, paper 401), v.

71. Report from the Select Committee on the Juries Bill; Together with the Proceedings of the Committee, Minutes of Evidence, and Appendix (1870), 26.

72. Ibid., 25.

73. Ibid., 49–50.

74. Mersey, Lord (Chair), Report of the Departmental Committee Appointed to Inquire into and Report upon the Law and Practice with Regard to the Constitution, Qualifications, Selection, Summoning, &c. of Juries, vol. 1 (Cd 6817, 1913)Google Scholar.

75. Ibid., 5.

76. This was certainly true in the assize boroughs, but a handful of other towns also refused to send jurors to the county assizes. The latter were generally seen as straightforwardly acting improperly, however, and so can be treated as raising a distinct set of problems to the assize boroughs, which prior to 1920 were considered to be operating within an established statutory framework when they proceeded according to their own customary rules.

77. Mersey, Report, vol. 1, 7. On resident aliens, see 33 & 34 Vict, c 77, s 8.

78. Mersey, Report, vol. 1, 8. The report does not clearly explain why such boroughs could not operate with two sets of jury qualifications: one for the quarter sessions, and one for the assizes. This possibility was presumably discounted on grounds of practicality.

79. Mersey, Report, vol. 1, 8.

80. 45 & 46 Vict, c 50, s 186(1).

81. Mersey, Lord (Chair), Report of the Departmental Committee Appointed to Inquire into and Report upon the Law and Practice with Regard to the Constitution, Qualifications, Selection, Summoning, &c. of Juries, vol. 2 (Cd 6818, 1913), 182–83Google Scholar. Discussed in more detail in notes 119–129.

82. Beaven and Griffiths, “Creating the Exemplary Citizen,” 208–11.

83. Major Baird, HC Deb 4 Mar 1920, vol. 126, c 683W.

84. Crosby, Kevin, “Before the Criminal Justice and Courts Act 2015: Juror Punishment in Nineteenth- and Twentieth-Century England,” Legal Studies 36 (2016): 179–208, at 205CrossRefGoogle Scholar. See also Lentin, Antony, Mr Justice McCardie (1869–1933): Rebel, Reformer, and Rogue Judge (Newcastle upon Tyne: Cambridge Scholars, 2016), 78–79Google Scholar.

85. Logan, Feminism and Criminal Justice, 87.

86. Crosby, “Keeping Women off the Jury,” 700.

87. Handwritten Minutes of the Assembly of the Council of Judges, July 26, 1920 (National Archives: LCO 2/602), 6.

88. Ibid., 4.

89. For example, Gullace, “Christabel Pankhurst and the Smethwick Election”; and Moore, “‘A Band of Public-Spirited Women,’” 153.

90. Beaven and Griffiths, “Creating the Exemplary Citizen,” 216.

91. Simon, E.D.A., A City Council from Within (London: Longmans, Green & Co., 1926), 235Google Scholar, as quoted from in Beaven and Griffiths, “Creating the Exemplary Citizen,” 216–17.

92. Indeed, even when the clerk of assize secured a law officers’ opinion confirming that county officials could fine borough officials for refusing to send jurors to the county assizes, the Devon clerk replied that he had no intention of taking action against those boroughs that did not send him jurors. This problem seems to have been restricted to the Southwest of England, however. On this debate, see, in particular, Tewkesbury's Chartered Liberties in Danger: Are its Residents Liable to Serve on an Assize Jury, July 1921 (National Archives: HO 45/11071/383085/62); Note written by HB Simpson, March 23, 1922 (National Archives: HO 45/11071/383085/62); Letter from William Graham-Harrison to Ernley Blackwell, October 16, 1923 (National Archives: HO 45/11071/383085/62); Letter from Brian S. Miller (Devon Clerk of the Peace) to E.T. Gardom (Gloucester Clerk of the Peace), May 4, 1921 (National Archives: HO 45/11071/383085/54); and Juries Acts: Preparation of the Jury List in County and Non-County Boroughs, June  2, 1921 (National Archives: HO 45/11071/383085/57).

93. “Jury Service: Important Decision by the Judges of Assize,” Nottingham Evening Post (Nottingham), February 12, 1920, 3.

94. On Bristol's historic non-common-law courts, see W. W. Veale, “The Bristol Tolzey Court,” Journal of the Society of Public Teachers of Law (1936): 20–29.

95. Darling J's address at Bristol, as recorded by L.C. Danger (Bristol Clerk of the Peace), May 4, 1920 (National Archives: HO 45/11071/383085/27a).

96. Letter from Edward Troup to Darling J, May 24, 1920 (National Archives: HO 45/11071/383085/27a).

97. Letter from Darling J to Edward Troup, May 24, 1920 (National Archives: HO 45/11071/383085/30).

98. Letter from J. St. L. Leslie (June 5, 1920), 2–3.

99. Ibid., 9.

100. On challenges to the array generally, see Blackstone, William, Commentaries on the Laws of England, Volume 3: Of Private Wrongs (Oxford: Clarendon, 1768), 359–61Google Scholar; O'Connell v R (1844) 8 ER 1061; and Archbold Criminal Pleading Evidence and Practice (2017 Ed), 4–301.

101. Letter from J. St. L. Leslie (June 5, 1920), 7.

102. Ibid., 8 (emphases added).

103. 9 & 10 Geo V, c 71, s4(2). Note written in the margin of Letter from J. St. L. Leslie (June 5, 1920), 8.

104. Case for the Opinion of the Law Officers, June 28, 1920 (National Archives: HO 45/11071/383085/30).

105. County Juries Act 1825: Summoning of Juries in Cities Having a Separate Commission of Assize, July 6, 1920 (National Archives: HO 45/11071/383085/30).

106. 10 & 11 Geo V, c 78, s 1 (emphasis added).

107. Ibid., s 2.

108. Lord Birkenhead LC, HL Deb 18 Dec 1920, vol. 39, cols 583–84.

109. Letter from Claud Schuster to Edward Troup, December 21, 1920 (National Archives: HO 45/11071/383085/46).

110. Note written by H.B. Simpson, December 22, 1922 (National Archives: HO 45/11071/383085/45).

111. Letter from Claud Schuster to Edward Troup, December 23, 1920 (National Archives: HO 45/11071/383085/46) (emphasis added).

112. Letter from L.C. Danger (Bristol Clerk of the Peace) to Under-Secretary of State at the Home Office, August 10, 1920 (National Archives: HO 45/11071/383085/44).

113. See, in particular, Letter from Lincoln Town Clerk to Under-Secretary of State at the Home Office, February 2, 1921 (National Archives: HO 45/11071/383085/50): “As you are aware Lincoln has a separate Commission of Assize and is a County of a City and it would not appear that the provisions of the Juries Act 1825 are applicable.”

114. Ibid.

115. Lieut-Commander Chilcott, HC Deb 22 Nov 1920, vol. 135, col 76W.

116. Letter from Exeter Town Clerk to Edward Shortt, May 21, 1921 (National Archives: HO 45/11071/383085/54a).

117. Record of a Meeting between Ernley Blackwell, H.A. Pritchard (Leicester Town Clerk), and Town Clerks of Nottingham and Bristol, June 30, 1921 (National Archives: HO 45/11071/383085/60).

118. Letter from Robert Muckle (Newcastle-upon-Tyne Undersheriff) to Under-Secretary of State at the Home Office, January 15, 1921 (National Archives: HO 45/11071/383085/49).

119. Mersey, Report, vol. 2, 182.

120. Mersey, Report, vol. 2, 182.

121. “Ladies of the Jury! Innovation in Bristol Trial,” Western Daily Press (Bristol), July 29, 1920, 6.

122. “Making History: Women in Jury-Box at Exeter,” Western Morning News (Plymouth), October 6, 1920, 8.

123. Mersey, Report, vol. 2, 183.

124. Grey, Daniel J. R., “Women's Policy Networks and the Infanticide Act 1922,” 20th Century British History 21 (2010): 441–63CrossRefGoogle ScholarPubMed.

125. “Jury Help Accused Woman,” Dundee Evening Telegraph (Dundee), June 12, 1924, 4.

126. Mersey, Report, vol. 2, 183.

127. Samantha Ruth Clements, “Feminism, Citizenship and Social Activity: The Role and Importance of Local Women's Organisations, Nottingham 1918–1969” (PhD Diss., University of Nottingham, 2008), 92.

128. Ibid., 108–9.

129. Ibid., 134–37.

130. 6 Geo IV c 50, s4.

131. In fact, there is a break in the extant records between 1889 and 1921, meaning that even if these details were recorded, they still would not exist for the relevant Newcastle session.

132. Crown Minute Book: North and South Wales Circuit 1918–1929 (National Archives: ASSI 61/29).

133. Crown Minute Book: Midland Circuit 1919–1921 (National Archives: ASSI 11/42).

134. Crown Minute Book: Oxford Circuit 1914–1920 (National Archives: ASSI 2/50).

135. Crown Minute Book: South Eastern Circuit 1919–1922 (National Archives: ASSI 31/54).

136. Crown Minute Book: Western Circuit 1920–1922 (National Archives: ASSI 21/85).

137. Crosby, “Keeping Women off the Jury,” 711–16.

138. “Women Jurors. Before the Ordeal,” Gloucestershire Chronicle (Gloucester), March 5,  1921, 4.

139. 45 & 46 Vict, c 50, s 186(1).

140. This was not a new idea. Howlin notes that there were proposals in Ireland as early as 1871 that jury service should be dependent on a person's presence in the electoral registers. This proposal was ultimately not enacted, however, because of concerns that this would make it too easy for people to dodge jury service by failing to pay the local taxation of the rates, thereby ensuring they were not registered as voters: Howlin, Juries in Ireland, 14–15.

141. Letter from Ipswich Overseer to Local Government Board, April 7, 1916 (National Archives: HO 45/10810/312306/1).

142. Letter from Assistant Secretary of the Local Government Board to Under-Secretary of State at the Home Office, May 8, 1916 (National Archives: HO 45/10810/312306/1).

143. Letter from Under-Secretary of State at the Home Office to Assistant Secretary of the Local Government Board, May 15, 1916 (National Archives: HO 45/10810/312306/1).

144. Letter from J. Percy Shuter (Fulham Town Clerk) to George Cave, February 21, 1918 (National Archives: HO 45/10810/312306/41).

145. Note written by H.B. Simpson, May 28, 1917 (National Archives: HO 45/10810/312306/32).

146. Note written by H.B. Simpson, May 11, 1918 (National Archives: HO 45/10810/312306/45).

147. Albeit only to 65, rather than all the way to 70, as Simpson had suggested: 8 & 9 Geo V, c 23, s 5.

148. Letter from Assistant Secretary of the Local Government Board to Under-Secretary of State at the Home Office, May 27, 1918 (National Archives: HO 45/10810/312306/49).

149. Ibid.

150. Note written by Ernley Blackwell, May 14, 1918 (National Archives: HO 45/10810/312306/45) (emphasis in original).

151. Letter to W. Marcus Wilkins (Battersea Town Clerk), May 10, 1917 (National Archives: HO 45/10810/312306/29); Letter from W. Marcus Wilkins (Battersea Town Clerk) to Under-Secretary of State at the Home Office, May 11, 1917 (National Archives: HO 45/10810/312306/30); Letter to W. Marcus Wilkins (Battersea Town Clerk), June 15, 1917 (National Archives: HO 45/10810/312306/33); Letter from J. Percy Shuter (Fulham Town Clerk) to Lord Finlay, May 17, 1918 (National Archives: HO 45/10810/312306/46); Letter from Ernley Blackwell to Claud Schuster, May 23, 1918 (National Archives: HO 45/10810/312306/46). See also the somewhat disorganised bundle of LCO files on the Bill: Juries Bill 1918 Papers, April–May 1918 (National Archives: LCO 2/347).

152. 8 & 9 Geo V, c 23, s 6.

153. Ibid., s 8(3).

154. Jury List Order 1918, August 2, 1918 (National Archives: HO 45/11071/383085/1); Jury List Order 1919, June 25, 1919 (National Archives: HO 45/10972/406646/1); Jury List Order 1920, June 28, 1920 (National Archives: HO 45/10972/406646/3).

155. Note written by H.B. Simpson, May 5, 1921 (National Archives: HO 45//11071/383085/53).

156. Note written by H.B. Simpson, March 12, 1920 (National Archives: HO 45/11076/406592/1).

157. 10 & 11 Geo V, c 17.

158. Letter from Norman T.J. Moses (Newport Borough Treasurer, Controller and Supervising Assistant Overseer), September 28, 1921 (National Archives: HO 45/11076/406592/55).

159. Note written by H.B. Simpson (March 12, 1920).

160. 11 & 12 Geo V, c 36.

161. Home Office Memorandum: jury list and registers, November 1920 (National Archives: HO 45/11076/406592/10).

162. On the drive to reduce central government spending at this time, see generally McDonald, Andrew, “The Geddes Committee and the Formulation of Public Expenditure Policy, 1921–1922,” The Historical Journal 32 (1989): 643–74CrossRefGoogle Scholar.

163. 12 & 13 Geo V, c 11, ss 1(1), 4(1).

164. Ibid., s 1(2–3).

165. Crosby, “Keeping Women off the Jury,” 707.

166. Logan, “‘Building a New and Better Order.’”

167. 7 & 8 Geo V, c 64, s 9(2).

168. Rae, John, Conscience and Politics: The British Government and the Conscientious Objector to Military Service 1916–1919 (Oxford: Oxford University Press, 1970), 71Google Scholar.

169. 33 & 34 Vict, c 77, s 8. Niamh Howlin has pointed out that this provision was brought in in the same year that the old juries de medietate linguae were abolished: Niamh Howlin, “Multiculturalism, Representation and Integration: Citizenship Requirements for Jury Service,” Dublin University Law Journal (2012): 148–72, at 169–70. It may be that the creation of the “alien” juror was intended as a compromise regarding this issue.

170. 7 & 8 Geo V, c 64, s 9(3).

171. Crosby, “Before the Criminal Justice and Courts Act,” 204–5.

172. Letter from James Kenyon to T. Burchell, December 8, 1916 (National Archives: HO 45/10810/312306/23).

173. 9 & 10 Geo V, c 92, s 8.

174. 12 & 13 Geo V, c 11, sch 1.

175. Letter from Claud Schuster to William Graham-Harrison, March 9, 1921 (National Archives: LCO 2/466).

176. Letter from William Graham-Harrison to H.B. Simpson, March 11, 1921 (National Archives: HO 45/11076/406592/12).

177. Letter from William Graham-Harrison to H.B. Simpson (March 11, 1921).

178. MP for Bristol Central, who would later become Lord Chief Justice.

179. Letter from Claud Schuster to Edward Troup, April 28, 1921 (National Archives: HO 45/11071/383085/53).