THE SOVEREIGN’S POSTERITY
GREGORY J. RODEN *
“What I bear, and clearly perceive to be animated, is innocent of the
faults of her who bears it, and has, I beg leave to say, a right to the
existence which God has begun to give it.” - Bathsheba Spooner1
“[T]he people are the sovereign of this country.”2 And, although the
people delegated many powers to the federal government in the United
States Constitution, t hey retained for themselves the benefi ts of “Trial by
Jury” under Section 2 of Article 3, the Sixth Amendment, and the Seventh
Amendment.3 By these constitutional provisions, not only was the right to
a jury trial guaranteed, but also the power to sit on juries and to be the finder-
of-fact.4 These constitutional guarantees are to be understood “with
reference to the meaning affixed to them in the [law] as it was in this country
and in England at the time of the adoption of” the Constitution.5
At the time of the adoption of the Constitution, the people retained the
power to determine when life began in the womb by means of matron juries.6
Pursuant to a writ de ventre inspiciendo, a jury of matrons was impaneled in
response to a plea of pregnancy made by a condemned woman “to ascertain
whether a woman convicted of a capital crime was quick with child . . . in
order to guard against the taking of the life of an unborn child for the crime
Copyright © 2015, Gregory J. Roden.
* Gregory J. Roden holds a J.D. from South Texas College of Law. I wish to thank my
family for their support and understanding of my time and effort devoted to this Article, and
I would like to express my gratitude to God for the many blessings received while working
on this article, “Thanks be unto Thee, from whom all comes, whenever it goes well with me.”
T. Kempis, Of the Imitation of Christ, 3rd bk., ch. 40 (Whitaker House 1981). Where
appropriate, I have retained the original spelling when quoting from historical documents to
preserve the style of the time-period for the reader’s appreciation.
1 Commonwealth v. Bathsheba Spooner, 2 AMERICAN CRIMINAL TRIALS 1, 49 (1778)
(Peleg Chandler ed. 1844).
2 Chisholm v. Georgia, 2 U.S. 419, 479 (1793).
3 U.S. CONST. art. III, § 2; U.S. CONST. amend. VI; U.S. CONST. amend. VII.
4 See U.S. CONST. art. III, § 2; U.S. CONST. amend. VI; U.S. CONST. amend. VII.
5 West v. Gammon, 98 F. 426, 428 (6th Cir. 1899).
6 See James C. Oldham, The Origins of the Special Jury, 50 U. CHI. L. REV. 137, 171–72