Women and Jury Service
From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book
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In A Place in the Palladium: Women's Rights and Jury Service, 61 U. CIN. L. REV. 1139 (1993), I describe women’s quest for jury service “as one facet of a greater struggle for recognition in the public life of the community.” I think it is important to see the fight for jury service as one with that for the vote and for entry into the legal profession. The same arguments were made against women doing each of the three, the same women fought for all three. The unity of the causes, or at least their close connection, seems to me both to reflect the history accurately, and to be a useful explanatory tool. On the other hand, Cristina Rodriguez, Clearing the Smoke Filled Room: Women Jurors and the Disruption of an Old-Boys’ Network in Nineteenth Century America, 108 YALE L. J. 1801 (1999) urges that disaggregating jury service from suffrage helps analyze the objections to women in the courtroom. She does, however, acknowledge a strong nexus between women being lawyers and serving on juries. Though I don’t agree with the disaggregation thesis, this is an excellent discussion of the cases and scholarly treatment of women jurors, an is especially interesting and insightful on the Washington and Wyoming experiences. See Gretchen Ritter, Jury Service and Women’s Citizenship Before and After the Nineteenth Amendment, 20 L. HIST. REV. 479Autumn (2002), for an account of the litigation and arguments over whether the federal suffrage amendment necessarily implied the duty or right of women to perform jury service. In Women's Jury Service: Right of Citizenship or Privilege of Difference, 46 STAN. L. REV. 1117 (1994) Joanna Grossman illustrates how the jury service campaign, which originated in the nineteenth century women’s rights movement, argued from principles of representativeness and citizenship – that a woman defendant had a right to a representative jury of her peers, and that all women had a right to serve on juries as a privilege of citizenship. Note, Beyond Batson: Eliminating Gender-Based Peremptory Challenges, 105 HARV. L. REV. 1920, 1924-27 (1992) also contains an account of the history of women’s jury service. For a good historical summary of stereotypes of women jurors, see Carol Weisbrod, Images of the Woman Juror, 9 HARV. WOMEN'S L.J. 59 (1986). Gretchen Ritter’s THE CONSTITUTION AS SOCIAL DESIGN (2006), Deborah Rhode’s JUSTICE AND GENDER 48-50 (1989) and Linda Kerber’s NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1999) also cover women’s historical exclusion from juries and successful feminist challenges to restrictive jury service laws from the nineteenth to the late twentieth centuries. | In A Place in the Palladium: Women's Rights and Jury Service, 61 U. CIN. L. REV. 1139 (1993), I describe women’s quest for jury service “as one facet of a greater struggle for recognition in the public life of the community.” I think it is important to see the fight for jury service as one with that for the vote and for entry into the legal profession. The same arguments were made against women doing each of the three, the same women fought for all three. The unity of the causes, or at least their close connection, seems to me both to reflect the history accurately, and to be a useful explanatory tool. On the other hand, Cristina Rodriguez, Clearing the Smoke Filled Room: Women Jurors and the Disruption of an Old-Boys’ Network in Nineteenth Century America, 108 YALE L. J. 1801 (1999) urges that disaggregating jury service from suffrage helps analyze the objections to women in the courtroom. She does, however, acknowledge a strong nexus between women being lawyers and serving on juries. Though I don’t agree with the disaggregation thesis, this is an excellent discussion of the cases and scholarly treatment of women jurors, an is especially interesting and insightful on the Washington and Wyoming experiences. See Gretchen Ritter, Jury Service and Women’s Citizenship Before and After the Nineteenth Amendment, 20 L. HIST. REV. 479Autumn (2002), for an account of the litigation and arguments over whether the federal suffrage amendment necessarily implied the duty or right of women to perform jury service. In Women's Jury Service: Right of Citizenship or Privilege of Difference, 46 STAN. L. REV. 1117 (1994) Joanna Grossman illustrates how the jury service campaign, which originated in the nineteenth century women’s rights movement, argued from principles of representativeness and citizenship – that a woman defendant had a right to a representative jury of her peers, and that all women had a right to serve on juries as a privilege of citizenship. Note, Beyond Batson: Eliminating Gender-Based Peremptory Challenges, 105 HARV. L. REV. 1920, 1924-27 (1992) also contains an account of the history of women’s jury service. For a good historical summary of stereotypes of women jurors, see Carol Weisbrod, Images of the Woman Juror, 9 HARV. WOMEN'S L.J. 59 (1986). Gretchen Ritter’s THE CONSTITUTION AS SOCIAL DESIGN (2006), Deborah Rhode’s JUSTICE AND GENDER 48-50 (1989) and Linda Kerber’s NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1999) also cover women’s historical exclusion from juries and successful feminist challenges to restrictive jury service laws from the nineteenth to the late twentieth centuries. | ||
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==Wyoming and Washington Territory == | ==Wyoming and Washington Territory == | ||
A contemporary article,which argued that jury service should follow from the grant of suffrage also discussed why the western states were quicker to grant the vote than the rest of the country. Constitutional Obligations and Woman’s Citizenship, 45 CENT. L.J. 244 (1912). Grace Raymond Hebard, The First Woman Jury, 8 J. Am. Hist. (1913) tells of first petit jury on which women served in Wyoming. Women were granted suffrage by statute in Washington Territory in 1883, after a persistent campaign over some years. T.A. Larson, The Woman Suffrage Movement in Washington, 67 PAC. NW. Q. 49 (1976). Immediately after gaining suffrage, women started serving on grand and petit juries under a statute which required that members of petit juries be electors and grand jurors be electors and householders. The grand juries with women on them returned numerous indictments against various forms of vice. In a series of criminal appeals, convicted defendants objected to the composition of grand juries which included women. The first line of attack was on the householder requirement and the first case to reach the appellate court was against Mollie Rosencrantz accused of running a brothel. Rosencrantz made the argument that married women could not be householders within the meaning of the statute. She lost that case with the court upholding women grand jurors in a strongly positive opinion about women’s rights. Rosencrantz v. Territory, 2 WASH. TERR. 267, 5 P. 305 (1884). Lelia Robinson was on the brief attacking women’s right to serve on grand juries, representing Mollie Rosenkrantz. Ruefully she explained that “my business associations made it necessary.... so that while my sympathies were on one side of the question, my work was done on the other, as sometimes must happen.” Lelia J. Robinson, Letter to the Equity Club, 1887, reprinted in Virginia Drachman, Women Lawyers and the Origins of Professional Identity in America 66 (1993). Robinson was maintaining the ideal of law practice in raising all a client’s valid points even if they conflicted with the attorney’s own beliefs. Women, moreover, could not succeed as lawyers if they refused to argue certain issues, especially ones like the illegal constitution of a grand jury which could be useful to many clients. | A contemporary article,which argued that jury service should follow from the grant of suffrage also discussed why the western states were quicker to grant the vote than the rest of the country. Constitutional Obligations and Woman’s Citizenship, 45 CENT. L.J. 244 (1912). Grace Raymond Hebard, The First Woman Jury, 8 J. Am. Hist. (1913) tells of first petit jury on which women served in Wyoming. Women were granted suffrage by statute in Washington Territory in 1883, after a persistent campaign over some years. T.A. Larson, The Woman Suffrage Movement in Washington, 67 PAC. NW. Q. 49 (1976). Immediately after gaining suffrage, women started serving on grand and petit juries under a statute which required that members of petit juries be electors and grand jurors be electors and householders. The grand juries with women on them returned numerous indictments against various forms of vice. In a series of criminal appeals, convicted defendants objected to the composition of grand juries which included women. The first line of attack was on the householder requirement and the first case to reach the appellate court was against Mollie Rosencrantz accused of running a brothel. Rosencrantz made the argument that married women could not be householders within the meaning of the statute. She lost that case with the court upholding women grand jurors in a strongly positive opinion about women’s rights. Rosencrantz v. Territory, 2 WASH. TERR. 267, 5 P. 305 (1884). Lelia Robinson was on the brief attacking women’s right to serve on grand juries, representing Mollie Rosenkrantz. Ruefully she explained that “my business associations made it necessary.... so that while my sympathies were on one side of the question, my work was done on the other, as sometimes must happen.” Lelia J. Robinson, Letter to the Equity Club, 1887, reprinted in Virginia Drachman, Women Lawyers and the Origins of Professional Identity in America 66 (1993). Robinson was maintaining the ideal of law practice in raising all a client’s valid points even if they conflicted with the attorney’s own beliefs. Women, moreover, could not succeed as lawyers if they refused to argue certain issues, especially ones like the illegal constitution of a grand jury which could be useful to many clients. | ||
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Less than three years after the victory for women grand jurors, there was a change in the personnel of the Court. That and the persistent appeals of defendants challenging women grand jurors led to an effective reversal of Rosenkrantz. In Harland v. Territory, 3 WASH. TERR. 131, 13 P. 453 (1887), a judge who had vehemently dissented in Rosenkrantz wrote the majority opinion holding that the underlying statute giving women suffrage was unconstitutionally drafted, and thus women did not meet the elector requirement for grand jury service. Lelia Robinson wrote her article on Women Jurors before Harland was decided. 1 CHI. L. TIMES 22, 33 (case was reported pending). It would have been interesting to see her comment on the use of her own case in Massachusetts refusing her admission to the bar for the proposition that sweeping change must be made by explicit legislation. The court also cited from Myra Bradwell’s Supreme Court case for this view. 3 WASH. TERR. 131, 140-42 (1887).The next term of a legislature elected with women voting passed a new woman suffrage statute. But in a case widely believed to be set up and financed by the liquor interests, the wife of a saloon-keeper sued officials she said refused her vote, and the new suffrage statute was also found unconstitutional. Bloomer v. Todd, 3 WASH. TERR. 599, 19 P. 135 (1888). The next year, a constitutional convention composed of men chosen without woman suffrage, decided that Washington would enter statehood with a constitution that limited the vote to men. The whole legal story is told very clearly in Aaron H Caplan, The History of Women's Jury Service in Washington, 59 WASH. ST. BAR NEWS March 2005 (a Loyola Law School Legal Studies Paper, No. 2008-22) (abstract available at http://ssrn.com/abstract=1184048) (visited July 28, 2008). | Less than three years after the victory for women grand jurors, there was a change in the personnel of the Court. That and the persistent appeals of defendants challenging women grand jurors led to an effective reversal of Rosenkrantz. In Harland v. Territory, 3 WASH. TERR. 131, 13 P. 453 (1887), a judge who had vehemently dissented in Rosenkrantz wrote the majority opinion holding that the underlying statute giving women suffrage was unconstitutionally drafted, and thus women did not meet the elector requirement for grand jury service. Lelia Robinson wrote her article on Women Jurors before Harland was decided. 1 CHI. L. TIMES 22, 33 (case was reported pending). It would have been interesting to see her comment on the use of her own case in Massachusetts refusing her admission to the bar for the proposition that sweeping change must be made by explicit legislation. The court also cited from Myra Bradwell’s Supreme Court case for this view. 3 WASH. TERR. 131, 140-42 (1887).The next term of a legislature elected with women voting passed a new woman suffrage statute. But in a case widely believed to be set up and financed by the liquor interests, the wife of a saloon-keeper sued officials she said refused her vote, and the new suffrage statute was also found unconstitutional. Bloomer v. Todd, 3 WASH. TERR. 599, 19 P. 135 (1888). The next year, a constitutional convention composed of men chosen without woman suffrage, decided that Washington would enter statehood with a constitution that limited the vote to men. The whole legal story is told very clearly in Aaron H Caplan, The History of Women's Jury Service in Washington, 59 WASH. ST. BAR NEWS March 2005 (a Loyola Law School Legal Studies Paper, No. 2008-22) (abstract available at http://ssrn.com/abstract=1184048) (visited July 28, 2008). | ||
Revision as of 21:27, 10 June 2010
In A Place in the Palladium: Women's Rights and Jury Service, 61 U. CIN. L. REV. 1139 (1993), I describe women’s quest for jury service “as one facet of a greater struggle for recognition in the public life of the community.” I think it is important to see the fight for jury service as one with that for the vote and for entry into the legal profession. The same arguments were made against women doing each of the three, the same women fought for all three. The unity of the causes, or at least their close connection, seems to me both to reflect the history accurately, and to be a useful explanatory tool. On the other hand, Cristina Rodriguez, Clearing the Smoke Filled Room: Women Jurors and the Disruption of an Old-Boys’ Network in Nineteenth Century America, 108 YALE L. J. 1801 (1999) urges that disaggregating jury service from suffrage helps analyze the objections to women in the courtroom. She does, however, acknowledge a strong nexus between women being lawyers and serving on juries. Though I don’t agree with the disaggregation thesis, this is an excellent discussion of the cases and scholarly treatment of women jurors, an is especially interesting and insightful on the Washington and Wyoming experiences. See Gretchen Ritter, Jury Service and Women’s Citizenship Before and After the Nineteenth Amendment, 20 L. HIST. REV. 479Autumn (2002), for an account of the litigation and arguments over whether the federal suffrage amendment necessarily implied the duty or right of women to perform jury service. In Women's Jury Service: Right of Citizenship or Privilege of Difference, 46 STAN. L. REV. 1117 (1994) Joanna Grossman illustrates how the jury service campaign, which originated in the nineteenth century women’s rights movement, argued from principles of representativeness and citizenship – that a woman defendant had a right to a representative jury of her peers, and that all women had a right to serve on juries as a privilege of citizenship. Note, Beyond Batson: Eliminating Gender-Based Peremptory Challenges, 105 HARV. L. REV. 1920, 1924-27 (1992) also contains an account of the history of women’s jury service. For a good historical summary of stereotypes of women jurors, see Carol Weisbrod, Images of the Woman Juror, 9 HARV. WOMEN'S L.J. 59 (1986). Gretchen Ritter’s THE CONSTITUTION AS SOCIAL DESIGN (2006), Deborah Rhode’s JUSTICE AND GENDER 48-50 (1989) and Linda Kerber’s NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1999) also cover women’s historical exclusion from juries and successful feminist challenges to restrictive jury service laws from the nineteenth to the late twentieth centuries.
Wyoming and Washington Territory
A contemporary article,which argued that jury service should follow from the grant of suffrage also discussed why the western states were quicker to grant the vote than the rest of the country. Constitutional Obligations and Woman’s Citizenship, 45 CENT. L.J. 244 (1912). Grace Raymond Hebard, The First Woman Jury, 8 J. Am. Hist. (1913) tells of first petit jury on which women served in Wyoming. Women were granted suffrage by statute in Washington Territory in 1883, after a persistent campaign over some years. T.A. Larson, The Woman Suffrage Movement in Washington, 67 PAC. NW. Q. 49 (1976). Immediately after gaining suffrage, women started serving on grand and petit juries under a statute which required that members of petit juries be electors and grand jurors be electors and householders. The grand juries with women on them returned numerous indictments against various forms of vice. In a series of criminal appeals, convicted defendants objected to the composition of grand juries which included women. The first line of attack was on the householder requirement and the first case to reach the appellate court was against Mollie Rosencrantz accused of running a brothel. Rosencrantz made the argument that married women could not be householders within the meaning of the statute. She lost that case with the court upholding women grand jurors in a strongly positive opinion about women’s rights. Rosencrantz v. Territory, 2 WASH. TERR. 267, 5 P. 305 (1884). Lelia Robinson was on the brief attacking women’s right to serve on grand juries, representing Mollie Rosenkrantz. Ruefully she explained that “my business associations made it necessary.... so that while my sympathies were on one side of the question, my work was done on the other, as sometimes must happen.” Lelia J. Robinson, Letter to the Equity Club, 1887, reprinted in Virginia Drachman, Women Lawyers and the Origins of Professional Identity in America 66 (1993). Robinson was maintaining the ideal of law practice in raising all a client’s valid points even if they conflicted with the attorney’s own beliefs. Women, moreover, could not succeed as lawyers if they refused to argue certain issues, especially ones like the illegal constitution of a grand jury which could be useful to many clients.
Less than three years after the victory for women grand jurors, there was a change in the personnel of the Court. That and the persistent appeals of defendants challenging women grand jurors led to an effective reversal of Rosenkrantz. In Harland v. Territory, 3 WASH. TERR. 131, 13 P. 453 (1887), a judge who had vehemently dissented in Rosenkrantz wrote the majority opinion holding that the underlying statute giving women suffrage was unconstitutionally drafted, and thus women did not meet the elector requirement for grand jury service. Lelia Robinson wrote her article on Women Jurors before Harland was decided. 1 CHI. L. TIMES 22, 33 (case was reported pending). It would have been interesting to see her comment on the use of her own case in Massachusetts refusing her admission to the bar for the proposition that sweeping change must be made by explicit legislation. The court also cited from Myra Bradwell’s Supreme Court case for this view. 3 WASH. TERR. 131, 140-42 (1887).The next term of a legislature elected with women voting passed a new woman suffrage statute. But in a case widely believed to be set up and financed by the liquor interests, the wife of a saloon-keeper sued officials she said refused her vote, and the new suffrage statute was also found unconstitutional. Bloomer v. Todd, 3 WASH. TERR. 599, 19 P. 135 (1888). The next year, a constitutional convention composed of men chosen without woman suffrage, decided that Washington would enter statehood with a constitution that limited the vote to men. The whole legal story is told very clearly in Aaron H Caplan, The History of Women's Jury Service in Washington, 59 WASH. ST. BAR NEWS March 2005 (a Loyola Law School Legal Studies Paper, No. 2008-22) (abstract available at http://ssrn.com/abstract=1184048) (visited July 28, 2008).
