Constantia Boon (1719): The Wisdom of Lay Juries

By the early eighteenth century, English physicians, anatomists, and philosophers of nature were already showing interest in intersex people and were attempting to view them as part of nature and classify them as either males or females. However, as exhibited in Hall’s case and in the other cases that will be presented, medical experts were not yet treated as privileged witnesses inside the court when adjudicating people’s sex. Rather, at least through the end of the eighteenth century, courts appointed juries and invited lay witnesses in order to classify intersex people.

Such was the case of Constantia Boon, the famous hermaphrodite of Charing Cross. English physicians had become important validators and refuters of hermaphroditism in non-legal settings, and they published accounts and detailed descriptions of hermaphrodites who displayed themselves in public shows (Guerrini Reference Guerrini, Dyck and Stewart2016, 28). Advertisements inviting the public to view the spectacle prided themselves on receiving medical authentication: “There is now to be seen the greatest wonder in nature, being an hermaphrodite, aged 18 years, complete male and female. And has given a general satisfaction to the most ingenious physicians and surgeons, who have inspected and confirmed the same” (The Post Man, and the Historical Account 1714). The credentialed hermaphrodite publicized in this ad was Constantia Boon, who was presented to the English public in London and elsewhere around 1714 (see Figure 1).

Figure 1. Advertisement for the viewing of Constantia Boon in Post Man and the Historical Account, London, December 4, 1714. Credit: Public domain.

Physician and anatomist James Douglas, who believed that intersex people were actually “deformed” women, examined Boon in detail and delivered his account to the Royal Society of London in 1715 (Guerrini Reference Guerrini, Dyck and Stewart2016, 31).Footnote ²¹ Douglas reported that Boon was born in Deptford in 1697 and was trained to be a quilter by the name of Constant or Constantia. Her mistress observed something unusual and ordered Boon to be examined by an old woman, who immediately declared Boon to be a hermaphrodite. Boon’s mistress decided to present Boon as a “prodigy of nature” in Smithfield. According to Anita Guerrini (Reference Guerrini, Dyck and Stewart2016, 35), who examined the medical inspection of, and experimentation on, hermaphrodites in eighteenth-century England, Boon was a popular “high-end” exhibit—she demanded relatively high admission fees and traveled from venue to venue all the way to London. When Douglas examined Boon, he asked questions about her menstrual cycle and sexual preferences and then examined her genitals closely and invasively through vision, touch, and probing with instruments. Douglas detailed the shape and structure of Boon’s labia, clitoris, and vagina, contrasting them with the size and shape of a penis, scrotum, testicles, and urethra. Douglas concluded that Constantia was not a true hermaphrodite, as she did not have a double-sex set of functioning organs but was instead “a real woman with the addition of something extraordinary in her labia” (Guerrini Reference Guerrini, Dyck and Stewart2016, 42).

Douglas’s verdict that Boon—a validated, displayed hermaphrodite—was in fact or “really” a deformed woman and not a hermaphrodite was later repeated by other physicians with regard to other publicly displayed hermaphrodites.Footnote ²² According to Guerrini, public displays of hermaphrodites like Boon served as a space for the meeting of learned and popular curiosities. In these contexts, she says, physicians worked to create a hegemonic narrative of hermaphrodites by producing naturalistic descriptions, accompanied by illustrations and learned observations, that classified them to either sex (49). Despite these efforts, however, the capacity of such physicians to shape popular and even professional conceptions of hermaphrodites was limited, as the public and other professionals maintained the belief that true hermaphrodites can exist (50).

Four years after Douglas delivered his report to the Royal Society, a trial involving Boon offered new evidence that medical and scientific knowledge had not yet affected the adjudication of intersex people in court. Indeed, this trial serves as another case of judicial reliance on communal knowledge and its reliance on non-physical elements. Specifically, on September 3, 1719, the Old-Baily Court in London confronted the question of Boon’s sex when a woman named Katherine Jones was accused of bigamy. According to the court record, Jones married Boon in April 1719 at a private house in Blue Ball Alley, but she was already married to a man named John Rowland (Tyburn Chronicle 1768).Footnote ²³ Remarkably, Jones tried dodging the accusation of bigamy by confessing to either marrying a “monster” or possibly a woman. That is, Jones acknowledged the two marriages, but she argued in her defense that Boon “was no Man, and therefore could not be a Husband; that it was a Monster, a Hermaphrodite, and had been shown as such at Southwark-Fair, Smithfield, and several other Places.”

To support her claim, some witnesses were called to court, one attesting that he knew Boon’s mother, “who brought it up as a Girl in Apparel and at School, and to handle the Needle, till it was 12 Years old, when he turn’d Man and went to sea.” Additionally, Boon appeared in court and testified to being a hermaphrodite convincingly: “She was also produc’d in Court, and own’d her being a Hermaphrodite, and having been shown; and it appearing by her own Confession as well as other Evidences that the Woman was more predominant in her than the Man.”Footnote ²⁴ As a result of the evidence presented, the jury acquitted Jones of bigamy and released her from prison.Footnote ²⁵

This decision—that Boon was more woman than man—was the easiest way to restore social order: in eighteenth-century England, both bigamy and sodomy were severe crimes that could be punished by hanging, but same-sex intimacy between women was not criminalized as was such intimacy between men (Binhammer Reference Binhammer2010, 2; Olsen Reference Olsen2017, 29–33). Additionally, juries in bigamy cases were reluctant to send bigamists to be hanged and tended to acquit defendants when some supporting evidence was presented (Capp Reference Capp2009, 553). These circumstances might explain why Jones preferred to admit that she had engaged in a void marriage with an individual who was possibly a woman—it would give the jury a way to avoid punishing her for bigamy. And if Boon wanted to protect Jones, presenting as a feminine hermaphrodite was likely the best strategy for doing so. Nevertheless, when Boon died in 1768 (Gentleman‘s Magazine 1768, 246), the case appeared in several reprints with an editor comment that affirmed the underlying fear of harming male privileges, such as marrying a different man’s wife: “We can only express our astonishment that an hermaphrodite should think of such a glaring absurdity as the taking of a wife!” (Tyburn Chronicle 1768, 329; Jackson Reference Jackson1794, 248).

Although no evidence regarding Boon’s anatomy was brought to court, hermaphroditic bodies in general were treated as a central site for community validation of sex, often in ways that undermined the individual’s wishes and autonomy. In the eighteenth-century world surrounding the Atlantic, the bodies of people of lower classes were often stripped and inspected. Unlike aristocrats who rarely exposed their skin, the bodies of the politically weak were more visible and scrutinized: the poor, runaway slaves, prisoners, army deserters, patients, or sex/gender transgressors were routinely inspected, described, and publicized (Morgan and Rushton Reference Morgan and Peter2005). Hermaphrodites’ sex was also a “subject for collective decision making,” and their bodies could be readily accessed by community members for observation and evaluation (M. Norton Reference Norton, Hoffman, Sobel and Teute1997, 55). Hall’s body was frequently examined by the townspeople, and Boon’s was examined first by her mistress and then by ticket buyers and physicians. There is no evidence that Boon agreed to participate in such exhibitions; according to Douglas’s report, Boon stated that she was sent to Smithfield fair by her mistress. Ruth Gilbert (Reference Gilbert2002, 136–38) argues that such public spectacles of hermaphrodites profited from the “colonial excitement” of seeing and knowing the body and further from the erotic nature attached to hermaphroditism. In these spectacles, scientists pried naked hermaphroditic bodies, determined to prove their sex, and made them into public scientific experiments (149). According to Guerrini (Reference Guerrini, Dyck and Stewart2016, 30), the “monstrous” or subhuman signification of hermaphrodites allowed physicians to subject their bodies to invasive and painful examinations and to produce detailed illustrations that were otherwise considered indecent at the time. As we will continue to see, people’s autonomy over their naked bodies was expropriated once their sex became a matter of doubt.

As mentioned earlier, this preference for having juries and lay witnesses, rather than medical professionals, decide hermaphrodites’ sex is unique to common law and contrasts with the then existing practices in civil law, which was practiced in other countries on the continent. For example, Daston and Park (Reference Daston and Katharine1985, 6; Reference Daston and Katharine1995, 425), historians of science who examined the history of hermaphrodite regulation, explain that in France, as early as the sixteenth century, medical commissions were appointed to help adjudicate defamation disputes in which one side called the other a hermaphrodite. They report that French magistrates referred alleged hermaphrodites to designated medical commissions consisting of surgeons, physicians, apothecaries, and midwives, and the magistrates deferred to these commissions’ judgments in every known case.Footnote ²⁶ Scholarly literature indicates that such judicial reliance on medical classifications of hermaphrodites in continental countries persisted throughout the nineteenth century.Footnote ²⁷ England, however, showed no such reliance on medical testimony in the case of hermaphrodites until late eighteenth century.

The difference between English and French courts can be explained by differences between the common law’s and continental law’s doctrines of evidence. The common law’s commonsense philosophy placed its faith in “the good sense of the laymen” so juries, rather than experts, were granted the authority to determine judicial facts (Boorstin Reference Boorstin1996, 111). Medical experts had been invited to testify in common law courts since the earliest days of common law, and, by the early modern period, such testimonies were in frequent use in England (Darr Reference Darr2014). However, during most of the eighteenth century, expert knowledge was not granted special status in the doctrine of evidence law. Indeed, before the modernization of evidence law doctrine, there was no meaningful difference drawn between the testimony of experts and that of lay witnesses in common law courts.Footnote ²⁸ As Tal Golan (Reference Golan2004, 19) notes, experts ordinarily appeared either as regular witnesses or as specialized juries (the most well known of which was the all-female jury of matrons, usually summoned to make factual determinations in cases of sexual assault, pregnancy, and childbirth). It seems that, while the use of experts was becoming more prevalent in England in some contexts (such as homicide trials) during the eighteenth century, the question of hermaphrodites was still considered non-scientific and was therefore under the purview of regular juries, with the addition of the specialized authority of females over the sexed body during community investigations, as we saw in Hall’s case with the group of married women.

The nearly absolute dependence of common law on the knowledge of lay witnesses changed in the late eighteenth century, when Lord Mansfield’s decision in Folkes v. Chadd legitimized and endorsed the use of expert testimony to prove “matters of science.”Footnote ²⁹ In the decades that followed, expert testimony was granted special status and privilege, and this status began receiving doctrinal recognition. The fourth edition of Geoffrey Gilbert’s (Reference Gilbert1795) The Law of Evidence from 1795 was the first evidence treatise to identify and define expert testimony as a special practice.Footnote ³⁰ Following the habit of French lawyers, the treatise named this practice “proof by expert” and described its reliability. The authority of experts to provide opinions in their testimonies was further formalized in modern evidence law theory (Golan Reference Golan2004, 53). This change in the judicial status of experts and in the relevance and credibility of their opinions led to the growth of medico-legal studies, and fostered the development of English medico-legal forensic science, almost two centuries after this development in continental Europe.Footnote ³¹

According to Catherine Crawford (Reference Crawford, Crawford and Clark1994, 89), differences between the legal systems in England and those in continental countries were “crucial factor(s)” in explaining why medico-legal science lagged behind in England. First, unlike in England, continental systems provided medical experts with a formal status that made the practice of medico-legal investigations lucrative, exclusive, and desirable by physicians. English physicians, on the other hand, were reluctant to appear in court for lack of proper compensation and appreciation (91–94). Second, the law of proof developed differently. Moving from the Middle Ages’ proof by ordeal or battle, English common law used jury trial designated to reach “lay consensus” on disputed facts. In continental Europe, however, proof by ordeal or combat was replaced with judicial inquisition into the matter, without the involvement of juries (95–96). This difference led to the development of authoritative doctrine to help judges sort out evidence and testimonies in specific circumstances based in medical expertise and forming a massive body of medico-legal literature. The use of professional judges as fact triers in continental countries made it easier to integrate technical evidence in trials than in common law courts (97–101). Throughout most of the eighteenth century, English judges and juries did not use medico-legal investigations when determining the sex of hermaphrodites. Instead, judicial fact finders relied on their common sense and intuitions.

While both the juries, who relied on their commonsense judgment, and Douglas, who practiced a scientific examination, arrived at the same conclusion—that Boon was a woman, they did so on different grounds. Douglas viewed, touched, and probed Boon’s body, whereas the juries listened to testimonies and observed Boon and the other witnesses. Douglas compared her female genitals (labia, clitoris, and vagina) to the size and shape of male genitals (penis, scrotum, testicles, and urethra) and arrived at the conclusion that she was a “real woman,” whereas the jury was exposed to Boon’s life narrative, her upbringing, her education and training, and the fact that she switched to male presentation at the age of twelve and was presented as a hermaphrodite. It seems that because common law courts relied on evidence presented by lay witnesses, judicial classifications did not focus on bodily sex but, instead, relied heavily on the social or lived experience of sex. I argue that common law’s philosophy of valorizing commonsense knowledge and the use of the jury system to determine sex enabled rich concepts of sex to persist despite the rising authority of medical and scientific knowledge in extralegal fora.

More importantly, however, the juries and Douglas ruled based on opposing theories of sex. Whereas the juries classified Boon according to the common law framework established on the Hippocratic/Galenic dominancy model of sex and announced that Boon was “more female than male,” Douglas introduced a new concept of sex—the idea of “true” or “real” sex, which related to the Aristotelian concept of sex that placed males and females as opposites.Footnote ³² As we will see, the rising status of experts in common law had far-reaching effects on the identity of sex classifiers, the evidence that would be examined in court to determine sex, and the very concept of sex itself.

Cavalier d’Eon (1771–78): Erosion of Lay Knowledge

In addition to the reliance on lay witnesses, Hall’s case exhibited the informal authority of women acting as lay experts, an authority likely drawn from the all-female special jury. The jury of matrons was an English legal mechanism designed to provide the court with authoritative opinions on the female body in relevant legal contexts, such as rape, pregnancy, virginity, impotency, inheritance, and other instances that require examination of the female body (Oldham Reference Oldham2006, 80–104), especially from the sixteenth century until early in the eighteenth century (Forbes Reference Forbes1988, 22–33; S. Butler Reference Butler2019). Although Hall’s case demonstrates a cultural reliance on the judgment of such knowledgeable woman, the three trials concerning the sex of Cavalier d’Eon toward the end of the century—between 1771 and 1778—represent a diminishment in the cultural authority of female inspections and the classification of hermaphroditic bodies. They also show the judicial aspiration to separate the court from salacious collective investigations into a person’s sex and to situate the court as a virtuous and civilized forum.

Although d’Eon’s character and life have been a fruitful source of study for scholars in the fields of early modern history and the history of sex, gender, and sexuality, here we will analyze d’Eon’s trial records and examine them against the backdrop of scientific revolution and growing medical expertise. Doing so exemplifies a major shift in the judicial interrogation of sex that occurred at the turn of the eighteenth century—a shift in which learned minds moved from relying on common sense to relying on science in the classification of sex. The jury of matrons’ mechanism that was in use at the time occupied a middle ground between these two approaches. These matrons were supposed to examine the female body, but they may have been inspecting male bodies as well, as had been the case for centuries. In medieval England, for example, “wise women” assisted ecclesial courts in cases where a woman requested annulment of her marriage due to her husband’s impotency. According to Jacqueline Murray (Reference Murray1990, 240–42), these courts appointed a group of “honest women” to confirm such impotency, and, in such cases, the wise woman would not only examine and touch the husband’s genitals but would also sometimes attempt to arouse him sexually (242). Although it is not clear to what extent these kinds of ecclesiastical and canon law procedures for engaging matrons correlated with common law court procedures (Oldham Reference Oldham2006, 83), the common law court’s need to determine a person’s sex may have triggered its engagement of matrons to conduct similar inspections in an informal manner.

One humorous instance of such an inspection occurred as part of the incredible case of Chevalier d’Eon. Born in 1728 in a small town in Burgundy, d’Eon studied in Paris; he then became involved in French diplomacy and espionage in England, where he was part of a web of agents employed by the French Foreign Ministry called “The King’s Secret” (Conlin Reference Conlin2010, 46). D’Eon’s physique was known to be androgynous. Although it is not clear whether he had a habit of occasional cross-dressing in his youth,Footnote ³³ rumors that d’Eon was a woman started circulating in London starting in the 1770s. He had already become a public figure by that time, so his sex became a popular topic for bets on London’s stock market (50). As with Hall and Boon before him, the question of d’Eon’s sex was a public one, well suited for conjecture and independent examination. Satiric documentation of what looks to be a mock trial to determine d’Eon’s sex was published in The Town and Country Magazine (1769), an eighteenth-century journal that shared the affairs of London’s upper class and “veiled ‘scandal’ tales, parodic ‘oddities,’ and satirical narratives” (Pitcher Reference Pitcher1983, 44). The featured trial was conducted by a jury of matrons, summoned to determine d’Eon’s sex conclusively: “The chevalier resolving to do himself justice, and prove his virility, had solicited several ladies of the first fashion, well known in the republic of gallantry, and completely qualified for the office, to form a jury of matrons” (Town and Country Magazine 1769, 249). The magazine published the alleged transcript of two sessions, with a parodic illustration and some ridicule of the matrons who attempted to determine d’Eon’s sex based on their past infidelities and experience with men (Burrows et al. Reference Burrows, Jonathan, Russell and Valerie2010, 117).

The publication of this mock trial was part of an established genre in eighteenth-century England: the publication of erotic trials. Emerging as a distinct branch of crime literature, newspapers and publishers printed detailed trials of divorce, adultery, impotency, and sexual perversions to attract buyers. These trials became “a popular form of soft-core pornography” (Kinservik Reference Kinservik2008, 10), and they were even more interesting when they involved high-ranking people and aristocrats. According to Peter Wagner (Reference Wagner and Boucé1982), medical reports in divorce trials had commercial value as they played “to the reader’s prurient interests” and were therefore placed in the title page. Sometimes they featured reports of matrons appointed by the court (Town and Country Magazine 1769, 225). The title page in d’Eon’s case promised “[a] humorous representation of a Jury of Matrons deliberating on the sex of the Chavalier D’E—n,” indicating both a cultural tradition of matrons determining sex and also an erosion in their status and that of their determinations in the late eighteenth century. The fact that d’Eon was a public figure made his mock trial suitable for publication. According to Wagner, pornographic trials were also an opportunity to embarrass French aristocrats. This mock trial implied that a known French spy and diplomat might be an impotent man or woman. Indeed, the accompanying illustration depicts d’Eon as proportionally smaller than the English matrons and as wearing a French symbol—the order of St. Louis necklace—around his neck (see Figure 2).Footnote ³⁴

Figure 2. The trial of Chevalier d’Eon by a jury of matrons, in The Town and Country Magazine, vol. 3, 1771. Credit: Public domain, Google digitized; courtesy of HathiTrust, https://babel.hathitrust.org/cgi/pt?id=hvd.hw28e0&view=1up&seq=276&q1=d%27Eon.

As in the later reprints of Boon’s case, the worry about blurring male-female boundaries was introduced here again, raising the specter of the formation of illegal marriages and the spread of adultery and divorce. The opening remarks by the chairwoman Lady Harrington stressed these fears, saying that this examination was important to the next generation because “if under the appearance of a male figure, any of our daughters should be so far imposed upon us to wed a woman, or even an hermaphrodite, what a disappointment must it not only be to them but our families, which may by that means become extinct!” (Town and Country Magazine 1769, 249). The report continued to describe the examination. Given the characterization of these trials as pornographic, it seems likely that the report of this one would include a thorough description of d’Eon’s private parts. However, although the illustration depicts a visual examination of d’Eon’s body using magnifying instruments (such as glasses and a telescope), the transcript mentions nothing of d’Eon’s body form or genitals. Instead, it reveals a parodic rationalization process; perhaps inspired by the historical contexts in which a wise woman aimed to arouse a husband’s suspected impotence (Murray Reference Murray1990, 246), d’Eon’s matrons based their judgments on their success (or lack of success) at seducing d’Eon: “I threw out every possible lure to induce him to make overtures to me, and almost solicited him to my bed, I never could get a tender thing from him” (Town and Country Magazine 1769, 249–50). On his writing skills, they declared: “I think he has so much sense to be a woman’s man; for all my lovers have been fools, and could never write a little better than myself.” The first meeting adjourned with the conclusion that d’Eon’s sex was “Doubtful” and scheduled to meet again soon “to determine finally whether the chevalier should remain of the Epicene gender”—that is, of indeterminant sex.Footnote ³⁵

The second meeting opened with a resolution that d’Eon was female (Town and Country Magazine 1769, 305). D’Eon allegedly appealed the decision by arguing that such a conclusion would create great damage to the French court and nation (for having appointed a woman as a diplomat) and would jeopardize the peace treaty between England and France (306). The matrons’ further discussion revolved around their attitudes toward the peace treaty with France. At this point, d’Eon’s sex classification reflected their political preferences and personal beliefs. They did not change their ruling that d’Eon was a female and reported that d’Eon thanked them for “the impartial sentence, and just determination they had made in her favour.” Although the matrons had promised to remove doubt from d’Eon’s sex through an impartial sentence, the public was not convinced. Despite the publication of the matrons’ decision, d’Eon’s sex remained unresolved in the stock market, and bets regarding d’Eon’s sex generated legal disputes. The mock trial transcript ridiculed the jury of matrons and portrayed them as frivolous ladies with extensive sexual experience who used their sexual seduction capacity whimsically and not as a reasoned method for determining sex. Six years after the publication of his mock trial by the jury of matrons, d’Eon’s sex became the subject of lawsuits in a real court of law.

The cases, which were adjudicated by Chief Justice Lord Mansfield in the Court of King’s Bench in 1777 and 1778, stand in stark contrast to the depiction of d’Eon’s mock trial—they reveal how changing social norms of modesty and honorability shaped the process of fact making in the context of doubtful sex in common law. In the first case, Hayes v. Jacques, Mr. Hayes, a surgeon, paid Mr. Jacques, a broker, a sum of one hundred guineas in hopes of receiving seven hundred guineas if Hayes were able to evince that d’Eon was a woman (Ashton Reference Ashton1898, 159–61).Footnote ³⁶ To offer proof, Hayes invited two witnesses who knew and had interacted with d’Eon. Both witnesses attested that d’Eon was a woman, based on their view of d’Eon’s body and the accompanying interaction on that occasion. The first, a surgeon named Mr. Goux, testified that “to his certain knowledge, the person called the Chevalier d’Eon was a woman” (159). In his cross-examination, he further explained that he examined d’Eon (at d’Eon’s request) regarding a disorder, which led to the discovery of d’Eon’s being a woman. The second witness, Mr. de Morande, testified that d’Eon had disclosed his female sex, wardrobe, and body to him on one occasion when d’Eon had invited de Morande to his house (160).Footnote ³⁷ He further testified that, on one morning, the Chevalier had invited the witness to approach “her bed, and then permitted him to have manual proof of her being, in very truth, a woman” (160). As suggested earlier, both witnesses’ testimonies—including that of the surgeon—hinged not on abstract scientific theories regarding doubtful sex but, rather, on the direct observation of d’Eon’s body and interaction with him. A newspaper reporting on the case described the two witnesses as “physical gentlemen” to possibly signal their medical expertise (Morning Chronicle and London Advertiser 1777).

Despite this move toward a more scientific/medical form of reasoning, however, Lord Mansfield was appalled by the inquisition and “expressed his abhorrence of the whole transaction, and the more so, for their bringing it into a Court of Justice” and wished the dispute “might have better settled elsewhere” (Ashton Reference Ashton1898, 161). Nevertheless, Mansfield acknowledged that the law did not prohibit bets on this topic and advised the jury to find a verdict for the plaintiff Hayes, which it did, thus deciding winners and losers in all other outstanding bets on the topic (162).Footnote ³⁸

A chance for Mansfield to repair the King’s Bench respectability arrived a year later, on January 31, 1778, when the question of d’Eon’s sex was raised again in Da Costa v. Jones.Footnote ³⁹ In this case, the defendant’s counsel laid out two arguments appealing the jury’s earlier decision. The first was that the decision should not be enforced because it required the introduction of “indecent evidence” to the court and the second (suggested by Mansfield himself) was that “it materially affects the interests of a third person.”Footnote ⁴⁰ Lord Mansfield accepted the latter argument, affirming d’Eon’s interest in the privacy of his sex. Mansfield also regretted that he had previously allowed confidential friends, acquaintances, and professionals to offer testimony on the issue and wished that they had refused to testify.Footnote ⁴¹ Although this may seem like a revolutionary ruling that signaled a humanization of hermaphrodites and viewed them as subjects of privacy, it was not so. Mansfield concluded that a person’s sex could be a legitimate subject for judicial interrogation depending on context and that, in contexts such as the case of a hermaphrodite heir, such an interrogation would be appropriate. In other instances, however, such as to rule on a bet, it would not be so.Footnote ⁴² In other words, he declared that judicial examination of a person’s sex would be perfectly fine when the hermaphrodite person was party to the legal dispute and the fact of their sex had legally enforceable consequences.

Reading Mansfield’s decision in d’Eon’s case against the backdrop of the mock trial by the jury of matrons reveals a tension between competing methods of proof, both contained within the common law tradition. Mansfield’s decisions in these cases seem to have been written to distance the King’s Bench from the indecency and primitiveness associated with the jury of matrons’ authority and the obscenity of pornographic trials. According to James Oldham (Reference Oldham2006, 113), the use of the jury of matrons apparatus had already decreased dramatically after 1720, partly due to growing medical and scientific authority of physicians. This change may explain why, by the end of the century (1771), the idea of sex determination by matrons had migrated to the realms of satire and ridicule and why Lord Mansfield wanted to distance the King’s Bench from this tradition. Nevertheless, the court still relied on community witnesses rather than medical experts. The doctrinal shift away from such witnesses and toward experts and science would follow Folkes v. Chadd some years later, and this shift would reduce common law’s traditional reliance on lay witnesses in such questions.

Hints to this shift appeared when d’Eon died in 1810, and a group of doctors, anatomists, surgeons, and other respectable men conducted a “complete inspection and dissection of the sexual parts” (Short Sketch 1810, 5). The report included a comprehensive description of his body, addressing in detail his face, body hair, arms, hands, fingers, and more, suggesting that they were feminine and “enabled him with more ease to carry on such a deception.” However, the group “decidedly ascertained, that the conformations of the organs was that of a male; and that all doubts, as to the identity of the person, might be removed,” likely due to their examination and dissection of his sexual parts, which are not detailed in the report. These findings made their way into later reprints of the Hayes v. Jacques case, which concluded with this statement: “When d’Eon died, in London, in 1810, it was proved, without a shadow of a doubt, that he was a man” (Ashton Reference Ashton1898, 162). As we will see in future cases as well, the transition from community and lay expert knowledge, such as that of the jury of matrons, to medical knowledge and expertise in d’Eon’s case indicates a desire for “doubt-free” proof and for evidence about sex that can be described as infallible.

In the era preceding scientific soundness, community investigations and their operation in court in the cases of Hall, Boon, and d’Eon demonstrate the way in which commonsense understandings animated the dominancy rule. The unstable and contingent nature of communal knowledge about sex meant that the legal fact of sex, which relied on that knowledge, could contain some doubt. That was acceptable in the legal system, where factual determinations were secondary to the primary objective of solving disputes; as a result, the fact of sex was determined instrumentally. Said another way, the dominancy of sex in legal settings was contextual and provisional and could potentially change. To be clear, medical knowledge of hermaphrodites at the time was also contingent and inconsistent; however, unlike judicial commonsense inquiry, the scientific inquiry sought to arrive at the correct answer and eliminate doubt as much as possible.

While the legal determination of sex remained instrumental throughout history, in the late eighteenth century, when sex became construed in the terms of a scientific fact, doubt was set to disappear from the legal fact of sex and from its legal determination. The idea of eliminating doubt using superior evidence interpreted by learned men was appealing to the common law judges. The next case demonstrates a part of this transition in which a late eighteenth-century judge surrendered easily to what he believed was superior knowledge and to a view of himself as an enlightened fact maker.

Betty John (1787): Judges as Enlightened Fact Makers

In addition to relying on communal testimonies, judges projected their own beliefs and understandings of sex into the courtroom. But in what way was judicial knowledge different from communal knowledge, if at all? This section will illustrate a judicial aspiration to facilitate a learned and “enlightened” procedure of proof to determine the sex of so-called hermaphrodites, as distinct from the procedures conducted elsewhere (for example, public fairs, the stock market, a mock trial). In d’Eon’s cases, for example, Lord Mansfield wanted to separate the court from popular investigations of sex. Over time, justices further diminished the authority of lay understandings of sex and acceded to medical proof. One way in which justices utilized their specialized status was through the administration of evidence. Sheila Jasanoff (Reference Jasanoff2018, 15–17) suggests understanding judges as “epistemological gatekeepers” who choose between types of authority without formal limitations. Given this understanding and the fact that modern evidence procedures were not formalized and were not consistently practiced in courts before the mid-eighteenth century, justices of the time enjoyed great procedural discretion when ruling on sex classifications.Footnote ⁴³

When judges operate as epistemic gatekeepers, I argue, they are required to negotiate between their commitment to local common sense and their duty to function as skilled triers of fact. As Jasanoff (Reference Jasanoff2018, 17) argues, discretionary judicial acts are not mere subjective arbitrary actions but, rather, “amplifiers of common sense,” as they seek to follow a reasoning that is “rooted in engrained collective beliefs.” On the other hand, at least in theory, fact-finder justices operate under the mode of “trained observers” who possess the expertise to evaluate and administer evidence in an educated and accustomed manner (Riddell Reference Riddell1918, 1003). Their administration and evaluation of evidence within the sea of informality is designated to reflect a higher standard of judgment and reasoning—that which is held by a learned professional judge and not by “tailors and shoe-makers” (1004). For common law justices, epistemic gatekeeping is conducted within these conflicting commitments: to higher reason, on the one hand, and to common sense, on the other hand.

In the context of doubtful sex, the question of whether to turn to experts to determine sex very much hinged on whether justices viewed the matter as scientific and as a question of their understanding of sex. It seems that for most of the eighteenth century common law justices figured that sex determination was in the purview of common sense, but toward end of the century, they began to view sex determination as a scientific matter that required external expertise. The trial of Betty John shows the efforts made by an English court of requests to make factual determinations that speak to commonsense logic but, at the same time, to assume judicial expertise that echoes scientific ideas about hermaphrodites.Footnote ⁴⁴ As described earlier, the surgeon James Douglas (who examined Boon in 1715) had already argued that true hermaphrodites do not exist and that those perceived to be hermaphrodites are actually “deformed women” (Guerrini Reference Guerrini, Dyck and Stewart2016, 31).Footnote ⁴⁵ Some decades later, James Parsons (Reference Parsons1741), a physician who was admitted as a fellow of the Royal Society as well as a former student of Douglas, published A Mechanical and Critical Enquiry Into The Nature of Hermaphrodites. The text was written following the arrival in London of “[t]he Angolan,” a celebrated hermaphrodite who was exhibited in different theaters and cafes (Parsons Reference Parsons1741, 1751, 142). Parsons’s (Reference Parsons1741, vi–x) primary aim was to convince both popular opinion and learned individuals that hermaphrodites do not exist among humans and that believing that they do is a superstition or vulgar error that needs to be abandoned.

Such denial of the existence of hermaphrodites was intertwined with the gradual acceptance of the Aristotelian model of sex, which viewed males and females as opposite ends of a distinct binary and rejected the dominancy model embedded in the old law (da Costa Reference Da Costa2004, 137). Eighteenth-century English dictionaries already expressed this view in their definitions of “Hermaphrodite,”Footnote ⁴⁶ and toward the mid-nineteenth century, admitting that hermaphroditism existed was seen as a token of ignorance and boorishness in medical circles (Dreger Reference Dreger1998, 139; Reis Reference Reis2009, 8).Footnote ⁴⁷ The association of this belief with vulgar commonality also appears in the case of Betty John, held at the Birmingham Court of Requests in England. The report begins by describing a potential plaintiff who wished to sue a potential defendant for failing to pay a debt (without further details); however, the plaintiff was not sure of the defendant’s sex because the defendant had been known in public in both male and female presentations. Following unsuccessful inquiries into the matter, the plaintiff filled out the summons with two names—Elizabeth Alias and John Haywood—and added: “Let the sex be what it would” (Hutton Reference Hutton1787, 425). Although the plaintiff’s name and the exact date and year of the case are not mentioned in the report, it was published in a thick volume from 1787 and written by William Hutton, who served as a commissioner and president in Birmingham’s Court of Requests sometime after 1769 (Elrington Reference Elrington2004).

As will be made clear, Hutton’s (Reference Hutton1787, ix) report of the case is not a mere presentation of the facts and legal outcome, but it can also be read as a firsthand monologue that describes the dilemmas and contemplations of one judicial fact finder in a case of doubtful sex in late eighteenth-century England.Footnote ⁴⁸ The report echoed the historical association of hermaphroditism with sub-humanity: “The animal appeared in court in a female habit, was rather elegant, of a moderate size, tolerably handsome, about thirty-two, had a firm countenance, and manly step, no beard, eyes susceptible of love, a voice tending to the masculine, with manners engaging, and was rather sensible” (426). The name attributed to her was Betty John, but Hutton did not seem convinced she was indeed a female: “As it attended the court in female dress, I shall take the liberty of treating it with a feminine epithet” (426). This representation of John by Hutton reflects the turning point described by Elizabeth Reis (Reference Reis2009, 22–23), who argued that starting in the late eighteenth century, the anxiety that dominated the interpretation of hermaphroditic bodies by doctors had changed. The old fear of godly wrath as manifested in monsters was gradually replaced by fears related to crossing racial and sexual boundaries. Accordingly, hermaphrodites were not perceived so much as monsters but more as deceivers or frauds.

As in the earlier cases, the question of John’s sex became crucial to the outcome of the legal proceeding—if she were a married female, as suggested by the presence of her alleged husband in the courtroom, the disputed debt might have been voided under the rule barring wives from forming contracts (Hutton Reference Hutton1787, 426).Footnote ⁴⁹ Because her sex and marital status were fundamental to the result of the procedure, the court was presented with evidence regarding John’s sex and the validity of her marriage to the man.Footnote ⁵⁰ In one version of the report, it is implied that a marriage certificate was “passed from hand to hand for inspection” but was not accepted, as it looked like it had been scribbled by a “school-boy.” This mention raises the possibility that a jury was appointed, but considering that this is a simple procedure in the court of requests, it is likely that the hands and eyes inspecting the note belonged to the people in the courtroom.Footnote ⁵¹

The report offered a candid consideration and evaluation of the evidence presented in this case, which demonstrates that Hutton was attempting to follow the ideal of a learned and civilized judge. Hutton (Reference Hutton1787, 426) mentions that “the common opinion of the ignorant, who knew her, was, that she was an hermaphrodite. Partaking of both sexes.” He further noted that the belief in the existence of hermaphrodites belonged to an era “marked with credulity” in which “every ear was open to wonder.” As noted, by the mid-eighteenth century, the notion that hermaphrodites did not exist and were most likely females or males had already started taking root in the learned texts of anatomists and surgeons. The idea that hermaphrodites did exist became associated with a lack of sufficient knowledge about the body and with an old, primitive world. As a result, Hutton evaluated evidence brought to him according to these higher standards of validation, and he concluded that John was actually a man in disguise—a husband and not a wife:

Following this presentation of “forcible evidence” pertaining to John’s romantic history and mastery of masculine behaviors, the court was persuaded that John was not a woman and not a wife but, rather, a man and, therefore, liable for the debt: “Her wife living peacefully with her all her days, without one complaint of the breach of the marriage covenant, evinced there was no defect…. Her being well versed in the art of kicking, further proved she was a man” (Hutton Reference Hutton1787, 428). John’s sexuality and ability to pass as a man were threatening to the status quo. Here, as in Boon’s case, a finding that John was a woman would have had atrocious implications for the separate spheres’ ideology—after all, if a woman could so successfully occupy a male-dominated sphere, what justified the separation in the first place? The socio-political separation between men and women was established based on clear and determinant differences between males and females. Accordingly, deciding that John was a woman would jeopardize the validity of this premise, so this conclusion was not one the judge was willing to draw easily.

However, a major turning point arose after John failed to pay her debt and was sent to prison. Then, Hutton (Reference Hutton1787, 429, emphasis added) reports: “It appeared from incontestable proof, that she was a real woman, and a real wife.” Hutton’s report implies that such evidence was probably gathered through physical examination upon John’s arrival to prison: “[S]he had nothing of the man about her higher than the feet.” According to the report, it was not possible to change the verdict in her favor at this point, and, eventually, John “cancelled the debt, by a confinement of forty days” (429). The fact that Hutton surrendered to supposedly physical evidence implies that he grew to believe that a superior means of proof was available outside of court and foreshadows what came next: judicial submission to professional classifiers who examine the body. His use of phrases such as “real women” and “real husband” as well as his decision to introduce the case under the heading “error in judgment” suggests that Hutton was impressively skeptical regarding his own capacity to make a “correct” classification (425).

Considering that Hutton identified John’s original classification as male almost completely based on behavioral factors such as her “masculine” traits and actions, while referring to her anatomy only implicitly by mentioning her satisfying marriage to a woman, as well as his later change of mind after discovering presumably physical evidence, also indicates the growing authority of the physical body over social indications for determining legal sex. The case of Betty John as reported by Hutton offers insight into one judge’s state of mind when administering evidence regarding a person’s sex. Hutton asked to distinguish judicial reasoning from the ignorant opinion found on the streets—that John was a hermaphrodite—and presented an evaluation of evidence that he believed would make sense to both the “wisest heads” and to “any other” person. Then, he was forced to confront the deficits in his own knowledge and reasoning. Although his approach to judicial sex is instrumental (that is, he treated the definition of sex as a necessary step to apply the law correctly and solve the dispute), he used new terminology with respect to sex. He used language that identified it as a condition that has true and false qualities and that can be evaluated and classified outside the court by using better evidence and methods than those available to judges.