Alan Rogers

"Finish the fight"
The Struggle for Women's Jury Service in Massachusetts, 1920–1994

THE CELEBRATION following the 1920 ratification of the Nineteenth Amendment to the United States Constitution was short-lived. Although the suffrage movement had included jury service among the rights it sought for women, as late as 1943 only twelve states permitted women to serve on juries on the same basis as men. Fifteen other states allowed women to volunteer for jury service, but less than 1 percent of eligible women signed up. As 1920 came to a close, Chief Justice Arthur P. Rugg of the Massachusetts Supreme Judicial Court (SJC) interpreted the word "person" in the state's traditional jury statute to exclude women; the caveat enabled the legislature to block, for three decades, any attempt to undermine woman's restricted place at the center of home and family life. After more than a score of skirmishes in the legislature and a handful of court battles, including a major hearing before the SJC in 1931, Massachusetts women finally became eligible for jury service in 1950. But because the jury selection law offered women easy exemptions and the court permitted discriminatory practices, it was not until a groundbreaking 1979 decision by the SJC that women jurors achieved equality.¹

Before 1920, women's suffrage advocates quietly folded the argument for jury service into their broader arguments for the vote. Suffragists either insisted generally that women were entitled to full and equal participation in the constitutional community or highlighted women's presumed moral virtue—seen as a beneficial difference from men. A suffragist speaking from the latter point of view told the National Council of Women that the "feminine heart, the maternal influence, are needed in the court-room as well as in the home." Boston's Jennie Loitman Barron, however, downplayed women's uniqueness. Following enactment of the Nineteenth Amendment, she emphasized women's professional experience and educational accomplishments and concluded that mixed juries would bring "a deeper understanding and a broader general experience than could be expected from a jury of either sex alone."²

Opponents of woman suffrage raised the spectre that votes for women "MEANS WOMEN ON JURIES." Jury duty "for your wife or your daughter," the Massachusetts Anti-Suffrage Committee stated in 1915, "is almost unthinkable. Yet it will be part of her legal duty as a voter." Another Massachusetts opposition group reprinted a horror story from a Seattle, Washington, newspaper that told of a woman juror involved in a lengthy trial whose children contracted measles. According to the flyer, the judge told her: "Don't let your attention be attracted by anything but the trial." The obvious point was made repeatedly: "NO MOTHER CAN SERVE on a JURY for WEEKS at a TIME WITHOUT NEGLECTING HER HOME AND HER CHILDREN."³

The Massachusetts men and women who led the debate against extending jury service to women after 1920 drew on arguments left over from the suffrage debate. They saw jury service as a threat to the sanctity of the home and to feminine character, arguments that revealed the depth of cultural opposition to changes in the social construction of womanhood. Political, ethnic, religious, and class fissures also fragmented and frustrated women's effort to win jury service. For this reason, the struggle to make women full and equal participants in the judicial system was protracted and contentious.⁴

Passage of the Nineteenth Amendment seemed to open the door for the inclusion of women on state juries, but Chief Justice Rugg, who presided over the SJC from 1911 to 1938, slammed it shut. Although he served during an era of sweeping change, Rugg largely ignored the new economic, social, and political realities. Rugg's conservative jurisprudence stemmed from personal beliefs nurtured throughout his life. Born during the Civil War on a western Massachusetts farm that his ancestors had settled in the seventeenth century, Rugg went on to graduate from Amherst College and Boston University Law School. He practiced law in Worcester from 1886 to 1893, and he served four years as assistant district attorney and nearly ten as city solicitor of Worcester. Republican Governor Curtis Guild appointed Rugg to the Supreme Judicial Court in 1906. Elevated to the top seat five years later at age forty-nine, Rugg guided the SJC for twenty-seven years, during which he wrote nearly 3,000 opinions. Like many of his brethren on the state courts, Rugg embraced iron rules purportedly derived by a logical process. He was uninterested in questions of fairness and justice except at the most general level, and he insisted upon the importance of custom and precedent. Above all, Rugg honored tradition, duty, and courage. He gloried in his Puritan heritage, celebrating his forefathers' commitment to slow, orderly progress. He defined duty as an individual's responsibility to work, to act according to Christian morality, and to abide by the law. Finally, Rugg believed that the epitome of courage was a manly dedication to preserving high standards in the face of new and difficult problems.⁵

Appointed to the Supreme Judicial Court in 1906, Arthur P. Rugg was made chief justice in 1911 and served until his death in 1938.
Courtesy Massachusetts Historical Society.

He banished judicial discretion from his legal world, and he sought to disconnect law and politics in the belief that his decisions would be politically neutral. "The administration of justice," Rugg told the members of the New York Bar Association in 1919, "must be so pure and so perfect that all right-minded citizens shall yield assent to its righteousness." A judge must manifest "perfect impartiality of temperament, a blindness to every consideration save that of the law by which he is bound." Of course, Rugg acknowledged, law is concerned with the consequences of action, and it must adapt to society's "changing necessities," but he warned the graduates of Amherst College, class of 1921, that "uncurbed conduct" or "insolent resistance" to the law would undermine the "fundamental virtues" and "common ethical conceptions of conduct" that bind society together. According to Rugg, a judge discovered and applied the "great cardinal rules ... which steer and guide and control people." In short, Rugg's jurisprudence led him to approach legal and political change very cautiously, to emphasize the risk rather than the benefits of change, and to elevate the judge's role in a democratic society.⁶

In the winter of 1920–1921, Rugg anticipated a request from the Massachusetts legislature for an advisory opinion about whether women newly enfranchised by the Nineteenth Amendment had become eligible for jury service. The state's jury service statute stipulated that "a person qualified to vote for representatives to the general court shall be liable to serve as a juror." Therefore, passage of the Nineteenth Amendment and the legislature's subsequent reenactment of this statute threatened to open the way for women jurors. On January 14, Rugg wrote his brethren on the SJC, alerting them that the issue likely would appear before the court. He left no doubt about his position: because women were not jurors at the time the Massachusetts constitution was adopted, he told his fellow judges, no constitutional provision now could be interpreted to include women. Perhaps with the hope of bolstering his position, Rugg next sent a letter to every state court chief justice in the United States asking for an update on that state's position in regard to jury service for women. He also read a brief drafted by Arthur D. Hill, Boston city solicitor, advising the Election Commission not to include women on the city's jury lists.⁷

While Rugg quietly prepared his argument, public commentators offered opinions about women's eligibility and qualifications to serve on juries. The Catholic World, for example, tardily welcomed women into the electorate, praising their "idealism, their sharp differentiation of right and wrong, and their keen sense of justice." But the journal condemned the idea of jeopardizing women's "purity, modesty, and delicacy" in the combative atmosphere of the courtroom. Early in February 1921, however, a Boston public official suggested that women might not have a choice: jury service "may be a duty accepted by women under the law when they registered to vote," Election Commissioner Frederick Finigan told reporters. Frank Grinnell, a lawyer and executive secretary of the state bar association who emerged as a leader in the argument, quickly rejected such an interpretation. Grinnell used his friendship with Rugg and key politicians, as well as his position as editor of the Massachusetts Law Quarterly, to campaign against women jurors. Often drawing material from English legal periodicals, Grinnell kept up a steady barrage of criticism. The real problem, he stated in one article, was the "element of indecency" which made it impossible for a mixed jury to do its job. "Decent men cannot discuss indecencies with decent women," and as a result, "justice may easily fail," he concluded.⁸

In March 1921, the House Rules Committee asked the House if women were liable to serve as jurors, setting up the request for an advisory opinion. As expected, the House then asked the SJC for an advisory opinion in regard to a bill proposing to amend the state's jury service statute by inserting the phrase "of either sex" after the word "person." The House attached two questions to the bill it sent to the court: "[U]nder the existing Constitution and laws of the Commonwealth and the Constitution of the United States, are women liable to jury duty"? If not, may the legislature enact a law making women eligible for jury service?⁹

The court's answers ended any hope for constitutional flexibility. According to common law, Rugg began, a jury meant "a jury of twelve men." Prior to the adoption of the Nineteenth Amendment women could not serve as jurors under the Commonwealth's constitution and laws. The Nineteenth Amendment did not change this fact, nor did it restrict a state's right to limit jury service to men. In Strauder v. West Virginia (1880), the Supreme Court of the United States recognized the right of states to prescribe the qualifications for jurors, to confine the selection to "males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications." The simple literal meaning of the word "person" in the existing Massachusetts statute seems broad enough to include women, noted Rugg, but according to the rule of statutory construction reenactment of an existing statute "does not affect its meaning or enlarge its scope in the absence of definite indication of a legislative purpose to that end." If the legislature had intended to include women when it reenacted the jury statute after passage of the Nineteenth Amendment, other changes in the law would have followed. For example, some women would have been included in the list of those who might be exempted from jury service and "provision made for the convenience of women in court houses." For these reasons, Rugg concluded, neither the Constitution of the United States, the Massachusetts constitution, nor the existing jury statute opened the way for women to serve as jurors. It was necessary, therefore, that the legislature enact a new law specifically making women eligible for jury service.¹⁰

Rugg's advisory opinion emphasized the letter of the law and turned a blind eye to the new political and legal reality created by women's suffrage. He also chose to ignore published reports from state courts whose opinions differed from his. The Michigan Supreme Court, for example, ruled in December 1920 that a woman may sit as a juror. Striking the word "male" from the U.S. Constitution, the court reasoned, was intended to "do away with all distinction between men and women as to the right to vote [and] to being electors." And, a unanimous court concluded, the moment a woman became an elector under the Nineteenth Amendment, she was entitled to perform jury duty. Likewise, in Commonwealth v. Maxwell, the Pennsylvania Supreme Court determined that women must be included as potential jurors because state law called for juries selected from "the whole qualified electors of the county." The law is prospective, argued Justice William Schaffer; "it takes in new classes of electors as they come to the voting privilege." "We entertain no doubt," concluded Schaffer, "that women are eligible to serve as jurors in all the Commonwealth's courts." The Iowa Supreme Court also concluded that women were eligible to serve as jurors and specifically rejected Rugg's argument that the common law called for a jury of twelve men. Arguing that the common law concept of a jury had only historical significance, the court chose to interpret the word "men" as it appeared in the state's jury statute "in its generic sense."¹¹

Rugg's survey of state court justices also generated informal opinions contrary to his. Only Chief Justice Theodore Brantly of Montana explicitly agreed with Rugg's advisory opinion. Thirteen of the forty-one justices who responded to Rugg's inquiry told him they interpreted the words "persons" and "electors" to include women and, therefore, believed women were eligible jurors. Chief Justice Walter Frank, for example, told Rugg that North Carolina had enacted no new statute because "it would seem that our former statute, possibly unintentionally, is broad enough, as it makes eligible for jurors 'all persons.'" Kansas Chief Justice William A. Johnston volunteered similar information, adding that women jurors already "have served acceptably and faithfully."¹²

Because Rugg set his face against this emerging liberal interpretation among state supreme court justices, Massachusetts women carried their fight to the legislature. Over the next decade, advocates testified at numerous hearings held before legislative committees and crowded into the State House gallery whenever a jury eligibility bill came to the floor for a vote. But success eluded them. A formidable coalition of politicians, lawyers—led by the state bar association's Frank Grinnell—and women who championed the importance of family and home blocked every effort to change the jury law. Furthermore, a sharp division within the pro-jury service ranks weakened their campaign. The moderate League of Women Voters was committed to achieving specific reforms, including jury service, while the radical National Woman's Party eschewed incremental reforms and raised the banner for an equal rights amendment. Opponents of women's rights easily took advantage of the difference between one-step-at-a-time and all-or-nothing.¹³

Grinnell, who sometimes concealed his identity under a pseudonym, orchestrated the opposition in 1922–1923. He wrote a widely circulated leaflet attacking politically active women, and he used his influential positions as editor of the Massachusetts Law Quarterly and as spokesman for the state bar association to decry any change in the jury statute. In one of his strategies, he coupled discussion of women jurors to the equal rights amendment, at once blurring the public's perception of the two positions and widening the gap separating the League of Women Voters and the National Woman's Party. Finally, he placed the question of female jurors within the context of a broad jury reform program that would investigate how jurors were selected, charges of bribery, and the need for tougher ethical standards for lawyers. This strategy raised dozens of controversial questions, furthered divided public opinion, and slowed the possibility of action.¹⁴

Writing as "A Member of the Bar," in a flyer distributed by the Women's Legislative Council and reprinted in the Quarterly in 1923, Grinnell conceded that women might make good jurors. But, he argued, any positive results would be outweighed by the disruption to home life caused by a woman's presence in a courtroom and by the destruction of her femininity that would inevitably follow. A woman should not be forced by law to have "the iron enter her soul" simply to satisfy the demand of a few for equality. For these reasons, Grinnell wrote, "I do not believe most women want jury service." Amending the U.S. Constitution to bring about gender equality as the National Woman's Party advocated, he wrote in the same issue of the Quarterly, would be far worse. The ERA would not only destroy the family and femininity, but undermine constitutional order as well. Attempting to change "complex civil relations" by amendment would sap the foundation of government. He urged women and men lawyers alike to review Rufus Choate's 1845 Harvard Law School speech. The primary task of the bar in a democracy, Choate told his listeners, was to keep alive the "sacred sentiment of obedience and reverence of the supremacy of the reason of the law over the fitful will ... of the crowd."¹⁵

To buttress further his argument against change, Grinnell mustered a cluster of contemporary authorities. He published the results of a survey of Boston Bar Association members which showed 353 out of 418 respondents opposed female jurors. He also invited B. Loring Young, speaker of the Massachusetts House, to remind voters how protective toward women the legislature had been. Deliberately joining the issue of jury reform with the controversial equal rights amendment, Young warned that pushing for "blanket equality" would alienate the legislature and end any chance of additional beneficial legislation for women. For good measure, Grinnell added that Florence Kelly, who had fought for women's reforms for more than thirty years, vehemently opposed the equal rights amendment and compulsory jury duty for women.¹⁶

Finally, Grinnell argued that whatever the legislature decided about jury service for women, nothing should be done until experts thoroughly studied the present system. He quoted former Massachusetts Attorney General J. Weston Allen's remark that the jury system "had actually broken down," and he backed a call by Henry Hurlbert, the president of the Boston Bar Association, for removing politics—often a euphemism for lower-class participation—from the selection of jurors, a practice especially prevalent in Boston. Both lawyers concluded that if women jurors "were suddenly injected into the law ... the whole problem of studying and suggesting improvements would be made more difficult."¹⁷

In the fall of 1923, Grinnell, Allen, and Hurlbert, along with dozens of others, testified before a special Commission on Jury Service. Although focused on the issue of female jurors, its charge was broad. The seven members, including two women—Rep. Sylvia Donaldson, a seventy-three-year-old Brockton Republican, and Miss Edith Haynes, a Boston activist—had authority to investigate corruption in the selection and practices of jurors, determine what architectural changes should be made to the courthouses to accommodate women, estimate the cost of those proposed changes, and recommend whether women should be liable for jury duty.¹⁸

The commission unanimously brushed aside as exaggerated charges of corruption made against the jury system and decided they lacked the expertise to estimate the cost of renovating the state's courthouses. Some evidence of illegal acts surfaced, the commission wrote in its final report, but in general, the "jury system was functioning fairly well for a human institution." If women became jurors, the commission acknowledged, the Commonwealth's courthouses must be remodeled. But, because the construction estimates submitted by county clerks varied according "to the zeal with which they opposed the service of women on juries," the commission threw up its hands in despair.¹⁹

On the primary question of whether or not women should serve on juries, the commission divided sharply. A majority of four—state senator Walter Shuebruk, Representatives Merle Graves and Donaldson, and Haynes—voted in favor of voluntary jury service for women. But Shuebruk, Graves, and Haynes explained in a dissenting report that they believed in compulsory jury service and, therefore, embraced voluntarism only as a lesser evil than no jury service for women whatsoever. The two women, however, disagreed as to whether women should be treated the same as men or privileged by law because of their gender. The commission's three lawyers—T. Hovey Gage, Thomas W. Proctor, and Frederick W. Mansfield—comprised the minority vote and opposed any kind of jury service for women. Because consensus eluded the commission, the legislature easily ignored its report.²⁰

Those commission members who opposed any jury service for women firmly believed that women generally were too delicate, too easily tainted by the process, too disinterested, and "happily," too different from men to be effective jurors. Why subject a "mother, daughter, sister, or wife to such coarsening influences" as she would encounter during a trial? Such an experience will be "morally contaminating," Proctor, Mansfield, and Gage concluded. "We are old-fashioned enough," the three lawyers boasted, to believe that women "are, and always will be, different from men"; that women should be protected by men from the ugliness in the world to preserve those differences; and that women want to be protected by men. For these reasons, the majority of men do not want women to be jurors and the majority of women do not want to be jurors. "Why then should we consider such a change?"²¹

In their dissenting argument for compulsory female jury service, Shuebruk, Graves, and Haynes focused on the legal context, arguing that women had the right and duty to serve on juries on the same basis as men. Jury service and voting have been linked since colonial times, the three insisted, and "it is not fair play to establish some new political distinction between male and female citizens." They claimed that the SJC wrongly interpreted the law on this point and that the commission's majority also wrongly proposed voluntary jury service. Whether men or women want to be jurors is not the point, they said; jury service is an obligation of citizenship, which women could capably fulfill. They urged the legislature to have "faith in the stamina and moral fiber of the best womanhood in the Commonwealth" and make women eligible for jury service on the same basis as men without delay.²²

The commission's lack of unanimity, Grinnell's high-profile opposition, and Rugg's negative advisory opinion meant that women had no chance of winning a vote on jury service in the legislature for the rest of this decade and on into the next. Still they tried. In 1924, the League of Women Voters petitioned the House for compulsory female jury service. Two hundred determined women packed a sweltering Judiciary Committee hearing to demand justice. To "laughter and applause," Jennie Barron, a young Boston lawyer and chair of the League's Committee on the Legal Status of Women, made a powerful argument for women jurors. She dismissed the question of whether women were the same as men or different. "If women are like men," Barron told the Judiciary Committee, "they surely should serve; and if women are not like men, their point of view, different from that of men, should be represented on our juries." Nonetheless, the committee did not approve the bill. Sen. John Gibbs then offered a bill on the Senate floor providing for optional, rather than compulsory, female jury service; senators voted it down, 22 to 15. The fight then moved to the House where members defeated a bill for compulsory jury service 147 to 18.²³

Jennie Loitman Barron (1891–1969), a 1913 graduate of Boston University Law School, in 1959 was the first woman appointed to the Superior Court.
Courtesy Schlesinger Library, Harvard University.

In the wake of this legislative defeat, the League launched an educational campaign led by prominent women attorneys. Barron—who in 1959 would become the first woman judge on the Massachusetts Superior Court—spelled out the League's position. First, she reminded opponents of female jury service that nearly 20 percent of adult women worked for pay outside the home and that the ease or difficulty with which they could perform jury service was no different from male wage earners. Second, many women's "children" were adults who "would not miss mother's care more than usual." Third, those women who had sole responsibility for the care of small children might be excused "for cause" like men with professional responsibilities. Finally, Barron argued, many women regularly left the household to work, to volunteer, or to attend a club meeting without "grace and charm departing from the American home; family life has not been destroyed ... children have not gone, in greater numbers than before, breakfastless to school. There is no recorded increase in the burning of soups."²⁴

Women attorneys from around the country also gave voice to the League's campaign. Judge Florence Allen, of the Ohio Court of Common Pleas, told a Massachusetts House committee that a woman juror would bring her "sense of responsibility, her conscientiousness, and her intelligence in following the evidence" into the courtroom. A United States assistant attorney general, Mable Willebrant, told a Boston audience that women jurors probed "beneath the surface" and were not "as susceptible to the wiles of attorneys" as men. Implying that women jurors came down harder on criminals than men, Philadelphia attorney Elizabeth M. Sheridan reported that "district attorneys are favorably inclined toward the presence of women on juries; defense attorneys are not so anxious." She worried aloud, however, about increasing the number of women from the "undesirable class to whom the service fee appeals."²⁵

Many Bostonians shared Sheridan's elitism. Alice Stone Blackwell assured her listeners that only women of "high culture" would serve as jurors. In fact, ex-Congressman Joseph O'Connell was one of a handful of advocates who spoke specifically in favor of including all women as potential jurors. "I am a son of an Irish mother, the Queen bee of the family," O'Connell stated. "Under the old Irish custom, a woman was entitled to sit in the old clan councils with her husband and so with that ancestry.... I believe a woman is capable of doing anything a man can do." Because Yankee reformers feared greater Irish participation, O'Connell's well-intentioned remarks may have hurt the effort to win women's right to serve on juries.²⁶

The struggle continued through the end of the decade, presenting advocates with ever more frustrating losses. The 1925 defeat of a female jury bill sent women pouring out of the Senate gallery to surround the opposition leader Sen. James Moran, who insisted only a handful of women wanted jury service, and shout down his discussion with news reporters. This defeat ended all attempts to adopt a jury bill for the next several years. In 1930, the Massachusetts Women's Council again brought the issue before the House, but with Rep. Sylvia Donaldson leading the opposition, the bill went to an easy defeat.²⁷

The following year, the League of Women Voters regrouped and turned to the Supreme Judicial Court, making use of an otherwise minor criminal case. In Commonwealth v. Welosky, Chelsea resident Genevieve Welosky was charged with violating the unpopular Volstead Act. During the hot July Fourth weekend in 1930, police raided Welosky's tenement and, according to their testimony, discovered a copper boiler, pitchers, a funnel, pails, kettles—"all the apparatus to make whiskey." When Welosky tried to throw some "white liquid" down the drain, a scuffle ensued and one officer was soaked with what he identified as whiskey. Welosky was arrested, indicted, and tried for "keeping ... intoxicating liquor with intent unlawfully to sell" it. Before her trial began, she challenged the constitutionality of excluding women from the jury pool. Superior Court Judge George Hayes rejected the motion, the defense recorded its objection, and the Court found her guilty. The SJC heard Welosky's appeal in the summer of 1931.²⁸

District Attorney William J. Foley appeared for the Commonwealth. He quickly rehearsed the arguments against women jurors, beginning with the fact that ten years ago the SJC had heard the same questions and decided unanimously against allowing women jurors. Jury service is not a right, he insisted, but a duty for which the state has the constitutional right to prescribe qualifications. Since Chief Justice Rugg's 1921 advisory opinion made it clear that the existing jury eligibility statute may not be stretched to include women, the opposition's only recourse lay in convincing the legislature to adopt a new law specifically permitting women to serve as jurors. He believed, however, that the "great multitude of the Womanhood of Massachusetts" wanted no such thing.²⁹

The Little Closed Spaces Where Men Are Men," by Carl J. Rose, Boston Herald, September 12, 1931.
Courtesy Boston Herald.

Attorney Edward Shanley put together a hard-hitting argument for Welosky, peppered throughout with acerbic criticism of the court's earlier conservative opinion. That opinion, he argued, had no bearing on the question now before the court, because the rule of stare decises did not apply to an advisory opinion. Therefore, Shanley asserted, the question remained as to the legality of the jury pool from which the court selected Welosky's trial jury. He contended that a jury must be drawn from the "whole body of qualified voters, composed of both men and women."³⁰

According to Shanley, the SJC adopted a "very narrow interpretation" of the Massachusetts jury law. The rule of statutory construction articulated by the court contravened "the great weight of judicial authority." In its advisory opinion, the SJC had stated that it saw no reason why women should be excluded from jury duty if the legislature approved. Shanley coupled this point with the argument that, since the legislature had reenacted the jury law using the word "person" only months after the Nineteenth Amendment was approved, "we may well presume that the Legislature intended to include women." Using the language of the original statute signaled the legislature's awareness that a constitutional amendment had qualified women to vote for representatives, and "thus enlarged the class subject to jury duty."³¹

Shanley's conclusion placed the issue of jury eligibility into the larger context of women's rights. The Nineteenth Amendment liberated women "from a previous condition of servitude" and entitled them to all the political and legal rights of a citizen. Any other interpretation of the Nineteenth Amendment, Shanley declared, takes us into the "realm of unreality." Therefore, empanelling an all-male jury to try Welosky denied her constitutional right to the equal protection of the law guaranteed by the Fourteenth Amendment.³²

The League of Women Voters amicus brief equaled Shanley's in power and authority, but it was less contentiousness and more historical. Greta Coleman's argument sought to trap the SJC within its own jurisprudential paradigm and to defeat the court with its own conservatism. She began with a historical-legal analysis of the Massachusetts jury statute, a law that took final form in 1895. Coleman established that every other excluded group had become eligible to act as jurors whenever legislation or constitutional amendment expanded the electorate. The "entire course of legislative history" supported this argument. For 136 years jurors had been chosen from the entire electorate without any corresponding change in the wording of the jury statute. Therefore, Coleman concluded, women became eligible jurors with ratification of the Nineteenth Amendment.³³

Given this historical practice, Coleman asserted that the SJC went well beyond its "duty and power" by interpreting the jury statute's key phrase "a person qualified to vote" to exclude women. The statute, she maintained, required no interpretation: "It is a rule of statutory construction that legislative enactments in general and comprehensive terms, prospective in operation, apply to all persons." The phrase "a person" referred not to the qualifications of electors as prescribed by the Constitution at enactment of the jury statute but to the qualifications stipulated by the Constitution at the time of juror selection. Consequently, whoever became a qualified voter instantly became an eligible juror. When the Nineteenth Amendment struck out the word "male" from the Constitution, ipso facto women became persons in the political sense and liable for jury service.³⁴

Finally, Coleman challenged the court's application of the rule of statutory construction. In its advisory opinion, the court had stated that the legislature's reenactment of the jury statute could not be interpreted to include women. Lawmakers, according to the court, must specifically stipulate that the legislation included women. Coleman turned the court's argument on its head: because of the automatic inclusion process, the burden actually lay on the legislature specifically to exclude women. In view of the "notorious character" of the Nineteenth Amendment, the legislature must have known that when they renewed the jury statute, women—like all previously excluded groups—automatically would be eligible jurors.³⁵

Chief Justice Rugg remained unmoved by Welosky's arguments. On September 9, 1931, he once again slammed the door in the face of all women who hoped to win the right to serve on juries in Massachusetts. The court's Welosky decision echoed its earlier advisory opinion and defined the word "person" as an equivocal word whose meaning in a statute requires interpretation. As used in the Massachusetts jury statute, "person" was defined by gender. Therefore, only men who entered the electorate were persons eligible to become jurors. "These concurring enlargements of those liable to jury service," Rugg held, "were simply an extension to larger numbers of the same classification of persons," namely men. When the Nineteenth Amendment created the new legal class of women voters, it effected a "radical, drastic and unprecedented" innovation that pertained to the right to vote only. It was "unthinkable" and "inconceivable" that the legislators who drafted or reenacted the jury statute had any intent to include women in "the meaning of the word 'person.'" Nor may an "intention to include women be deduced from the omission of the word male," wrote Rugg. If the legislature intended to make a change in the legal capacities of women, it must do so explicitly. Since it had not, the "true construction" of the jury statute remained that "women are not eligible to jury service."³⁶

Rugg's decision also rejected Welosky's constitutional argument. The Thirteenth, Fourteenth, and Fifteenth Amendments, the chief justice maintained, aimed at making former slaves into free men. Women were not in an analogous situation, a fact recognized by the Supreme Court in Strauder v. West Virginia, an 1880 case in which the Court reversed a conviction of a black man found guilty by a jury from which blacks had been excluded by statute. In dictum, the Court found that with the exception of race, states may "prescribe the qualifications of its jurors, and in doing so make discriminations." A state could "confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications." The Supreme Court had also held in In Re Lockwood (1894) that states could confine the word "person" in the Fourteenth Amendment to men alone. Based on these authoritative statements, concluded Rugg, no conflict existed between the SJC's interpretation of the jury statute and the Fourteenth Amendment.³⁷

At the end of the decade, newly elected representative Leslie B. Cutler took up the fight, and her persistence and enthusiasm pumped new life into the flagging effort. It's "a shame to keep women out of the jury box with the pretense of sheltering them," the forty-nine-year-old Needham resident declared shortly before her election to the Massachusetts House in 1939. "There is no place unfit for a pure women to go if she can do good." Nevertheless, her first effort failed. In 1939, the Judiciary Committee rejected Cutler's bill to permit women to serve as jurors on the same basis as men, and after a very brief debate, the entire House voted down her measure, 87 to 15. She reintroduced the bill in 1941, despite the 1940 U.S. v. Ballard U.S. Supreme Court ruling, in which the Court decided that the Nineteenth Amendment did nothing more than give women the right to vote. This time, she had the backing of a bipartisan women's coalition: two urban Democrats, Susan Donovan and Catherine Falvey, joined with Cutler and Margaret Spear, Republican representatives from suburban districts. As a result, the procedural votes in the House committees and on the floor drew closer together. But the debate revealed the deep and powerful cultural imperatives that fueled men's opposition to women's autonomy and to their entrance into the male sphere of the courtroom.³⁸

On April Fool's Day, Rep. Edmond Donlan, a Boston Democrat, introduced two amendments to Cutler's 1941 bill. The first required women to file with the Election Commission a physician's certificate stating that "they have examined such woman and have found that [jury] service would not impair her physical condition or health." Donlan's second amendment proclaimed that "No married woman shall be permitted to serve as a juror unless she has the written consent of her husband." Cutler protested and asked the speaker of the House to dismiss it as "frivolous." He refused and the two amendments came to a vote. The first went down by the slim margin of 52 to 55, but on the question of a "husband's right," the House voted 81 to 49 in favor of the amendment. As amended, the House mercifully killed the bill by a vote of 111 to 95.³⁹

By the time the House met again, in 1943, the nation was at war. Millions of women took jobs outside the home for the first time; millions more performed volunteer work, donated blood, served on local rationing boards, and sold defense bonds. About 350,000 women enlisted in the armed services. Advocates of jury service for women did not hesitate to point out how irrelevant the Victorian prescriptions for women's behavior had become. "Are we going to tell our women who have been serving as nurses on Bataan and Corregidor, who have been ferrying planes for the Army, who have been taking men's places in war industries, that they are incapable of being jurors? Not in my opinion," declared Cutler on the eve of another legislative battle within the Massachusetts House. Not only did Cutler have the "war on her side," but for the first time her cause had advocates among high-ranking state government officials. Gov. Leverett Saltonstall's cautiously worded recommendation to the legislature for revision of jury service during wartime seemed to some to indicate his support for Cutler's bill. Attorney General Robert T. Bushnell stated that he thought it "idiotic" to deny women the right to serve on juries in Massachusetts.⁴⁰

To improve its chances, Cutler amended her 1943 bill to exempt "at their own request, mothers of one or more children under the age of fourteen years." The amendment passed easily and seemed to foreshadow quick passage of the bill. But on June 3 the House voted 115 to 89 to postpone further consideration of Cutler's bill until the next session of the legislature. In fact, the House did not reconsider the issue until 1946, at which time Cutler's nonpartisan coalition put the issue on the ballot, to "ascertain the will of people." Approved by the House and the Senate, the question went before Massachusetts voters: "Shall the General Court enact legislation requiring jury service for women with such reservations as it may prescribe?"⁴¹

As president of the Non-Partisan Committee for Jury Service for Women, Representative Cutler led a low-key but energetic campaign aimed primarily at women voters. Speaking to a Republican woman's group in October 1946, for example, Cutler reminded her audience of women's wartime accomplishments and pointed out how "ridiculously inconsistent" it was that Massachusetts had women defendants and plaintiffs, women lawyers and judges, but no women jurors. A Boston Globe survey highlighted personal and political reasons why working women supported the reform: a "librarian" believed that "a woman has just as much right as a man to serve on a jury"; a "teacher" emphasized the duty of every citizen to participate in administering the law; a "salesgirl" argued that women "can be just as impartial as men in crimes against society"; and a "file clerk" asked, "Why not? Women have just as good brains as the men have." An editorial in the Boston Herald supporting the ballot measure also saw the question as one of equality and fairness. "It is only fair that [women] should enjoy equally with men the right of helping to determine the administration of justice, and that they should share in shouldering the responsibility of maintaining a decent standard of justice."⁴²

Leslie B. Cutler, who served in the Massachusetts House and Senate from 1939 to 1968, authored the bill permitting women to serve on juries.
Courtesy State Library of Massachusetts.

In the midst of a Republican sweep of state offices, Massachusetts voters supported the ballot measure by nearly a two-to-one margin. "Women have waited a long time for this morning, but it's a glorious morning today," Cutler cheerfully stated. Delighted as she was, the veteran legislator knew the road to victory still had to run through the male-dominated legislature. "I am confident," she said, "that the men of the Judiciary Committee will bring in a good bill and that the legislature will heed the mandate and enact the bill." In fact, when the 1947 and 1948 legislatures convened, the voters' mandate for women jurors encountered frustrating male intransigence. Frank Grinnell, long-time nemesis of jury service advocates, presented a different interpretation of the recent referendum to the Judiciary Committee. According to Grinnell's reckoning, the favorable majority for women jurors disappeared if those voters who expressed no opinion were added together with those who voted no. By distorting the data in this fashion, he concluded that most voters opposed compulsory jury service for women. He also revived his old arguments that women's participation would undermine the judicial system and destroy the home. Although other witnesses pointed out that a committee of federal judges had recommended to Congress that women be eligible to serve on federal juries regardless of state laws, the division of opinion on the question of whether to require Massachusetts women to serve on the same basis as men prevented any legislation from being enacted in 1947.⁴³

In the 1948 legislative session, Cutler's bill squeaked through the Judiciary and Counties committees and gained approval by the House late in May. But the Senate's jury bill differed markedly from Cutler's House bill. The upper house wanted women to be excused from jury service upon request and in cases of rape, assault with intent to rape, and child abuse. Cutler led the fight in the House against the conservative Senate bill. To break the deadlock the legislature's leaders appointed a conference committee on June 7, but it failed to agree on a compromise bill. More debate and another conference committee only led to another deadlock and the bill's death.⁴⁴

When the legislature reconvened in 1949, Cutler occupied a Senate seat, only the second woman to serve in the Massachusetts upper house. With the backing of the League of Women Voters, Cutler introduced a bill making women eligible for jury service. She and her allies turned back two early attempts to derail the bill, but they could not block the majority from adding damaging amendments. These allowed a woman to choose to have her name omitted from the jury list and to be excused from rape and child abuse cases "if she would likely to be embarrassed by hearing the testimony or by discussing the same in the jury room." Cutler reluctantly accepted the amended bill as the best she could get. Following a brief debate, the House concurred with the Senate's bill. Hailing the measure as "another step in the emancipation of women," Gov. Paul Dever signed the bill on May 26, 1949. When the act became effective on July 1, 1950, Massachusetts became the thirty-ninth state to make women eligible for jury service, one of twenty-eight states that allowed women an exemption based on gender, and the only state to include a specific provision designed to protect women from potentially embarrassing testimony. The law stopped well short of treating women jurors as the legal equals of men.⁴⁵

In the summer of 1951, Suffolk County selected the first women for jury service. The Suffolk County Grand Jury included a fifty-year-old machinist, born in England, who had emigrated to the United States in 1915, and the venire for the Suffolk County criminal court included a married woman, born of Irish-American parents in Boston, who worked as a night supervisor at Western Union. Both expressed their willingness and happiness to be among the "pioneer women to do jury duty in Massachusetts," and both women perceived jury service as an extension of their personal history. "I have enjoyed equal rights in my work with men," said the supervisor, "and I have enjoyed the privilege of voting since I was 21, so I consider myself ready to sit as a juror."⁴⁶

The judicial system slowly integrated women jurors. In November 1953, three women served as jurors in a Hampden County capital case that charged thirty-two-year-old Stephen Ciolek of Holyoke with the murder and attempted rape of a four-year-old girl. Testimony at trial provided evidence of Ciolek's heavy drinking and that his wife divorced him for cruel and abusive treatment. The jury found Ciolek guilty of first degree murder but recommended that the death sentence not be imposed. Four years later, women served on a capital jury in Norfolk County for the first time. Three women and nine men found twenty-three-year-old Jack Chester, of Dorchester, guilty of shooting to death Beatrice Fishman, his eighteen-year-old sweetheart. Just before the jurors left the courtroom to deliberate, Chester stood and told them: "It is my opinion that any decision other than murder in the first degree with no recommendation for leniency is a miscarriage of justice." The jury agreed and Judge Frank Donahue sentenced Chester to death.⁴⁷

Women's occasional inclusion on juries did not mean equal treatment, however. Both Massachusetts law and persistent Victorian courtroom etiquette perpetuated a dual standard and reinforced a picture of women as "vulnerable," "sentimental," "bewildered," "stubborn," "silly," and "uncompromising." The Boston Traveler, for example, reported knowingly that women would not choose to serve on the Essex County jury to try Lorraine Clark on a charge of murdering her husband because they would be forced to listen to "lurid" testimony. In the same vein, Judge Edward Hanify "graciously" allowed the first woman selected as a juror in Middlesex County to wear her hat in the courtroom, a custom women attorneys had rejected as early as 1912 because it encouraged male condescension. As late as 1961, the Boston Herald reported that a potential woman juror's answer to a question about her feelings about capital punishment—she believed "everyone should be given a second chance"—caused the men in the courtroom to be "convulsed" with laughter.⁴⁸

Other, more serious forms of gender discrimination persisted long after the enactment of the 1950 law. For more than twenty-five years jury commissioners deliberately underrepresented women, and attorneys used peremptory challenges to systematically eliminate those few women included in jury pools in order to create all-male panels. The case of Brunson v. Commonwealth, heard before the SJC in 1975, brought a number of underhanded practices to light. Although women constituted nearly 55 percent of the population of Suffolk County according to the 1970 U.S. Census, the Suffolk County jury commissioner admitted in 1974 that his automated program for choosing potential jurors selected two men for every woman. The numbers became more disparate after he eliminated ineligible jurors and equalized the distribution of potential jurors among each Boston ward. In 1963 and 1972, for example, this method created a jury pool of 15,100 men and 2,590 women and of 16,225 men and 5,850 women, respectively.⁴⁹

Also in 1975, the U.S. Supreme Court ruled in Taylor v. Louisiana that excluding women from the jury pool deprived Billy J. Taylor—a man convicted and sentenced to death for aggravated kidnapping—of his constitutional right to "a fair trial by jury of a representative segment of the community." The Court noted that because Louisiana's voluntary system required women to register specifically for jury service before they were placed on jury lists, "only a very few women, grossly disproportionate to the number of eligible women in the community, are called for jury service." In fact, the list from which Taylor's trial jury was drawn did not include women. A majority of the Court held that because Louisiana's system operated to exclude from jury service an identifiable class of citizens constituting 53 percent of eligible jurors in the community, it violated the "fair-cross-section requirement" embedded in the Sixth Amendment.⁵⁰

Restricting jury service to one sex or another cannot be squared with the constitutional goal of creating a jury broadly representative of the community. "The truth is," wrote Justice Byron White, quoting the Court's decision in Ballard v. United States (1946),

that the two sexes are not fungible: a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.

As to the old argument that women played a distinctive role in society with which jury service would interfere, the Court answered that "it would be untenable to suggest these days that society cannot spare any women from their present duties." Trial judges will need to question potential women jurors to determine who should be exempted, but it's a task they have performed routinely in the case of men. The day has "long since passed," Justice White added, when women's qualifications to sit on juries would be questioned or when their so-called "special position" in society would exempt them from jury service. By elevating the representative jury from statutory to constitutional law, the Supreme Court extended the requirement that women must be an integral part of any jury system in state courts.⁵¹

The last legally permissible exemption excuse for women jurors in Massachusetts came under scrutiny in 1975 as well. According to the 1950 law, no woman would be required to serve as a juror at a trial for rape or child abuse if "upon her representation it appears to the presiding judge she would likely to be embarrassed" by the testimony. In 1975, Morris Morgan, a convicted rapist, challenged this provision of the law. He argued that he had been denied his constitutional right to a fair trial because the trial judge advised each potential woman juror that she could be excused. Although the trial judge downplayed the significance of the statute by referring to it as one "passed a long time ago," one of the two women called up for the jury chose to be excluded. Justice Herbert Wilkins rejected Morgan's argument, noting that the jury statute's "embarrassment" section did not provide for an automatic exception for all women, as was the case in Taylor, and that the Supreme Court's decision allowed states to "provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community." Exclusion of a woman juror because she might be embarrassed is a reasonable exception, Wilkins wrote for a unanimous court. "Embarrassed women do not constitute a significant class in society whose exclusion from jury service raises a constitutional question," concluded Wilkins with a touch of humor.⁵²

Three years after the court's decision in Morgan, a handful of women legislators in the Massachusetts House led the fight to amend the "embarrassment section" of the jury law to include men. These new activists sought to chase the double standard of sexual morality from the courtroom. Taking a leaf from Cutler's old book of legislative strategy, they put together a bipartisan women's coalition that included Democrats from Boston and the suburbs, and a suburban Republican representative. The proposed law used gender neutral language: "no person" shall be required to serve as a juror in any prosecutions for rape or child abuse, if it appeared to the trial judge that "such person would be likely to be embarrassed" by the testimony or the deliberative discussion. The law passed easily and scheduled to go into effect on January 1, 1979, thirty years after the jury eligibility statute brought women into the jury box for the first time.⁵³

Later that same year, the SJC handed down an innovative decision that created a new standard for the use of peremptory challenges in Massachusetts courts. By a 4 to 3 vote the court found that three black men had been wrongly convicted of murdering a Harvard College football player during a melee that occurred in the fall of 1976. The men had been deprived of their "constitutionally protected right to a trial by a jury fairly drawn from the community" because the prosecution had used peremptory challenges to eliminate twelve of thirteen potential black jurors. Justice Paul J. Liacos boldly relied upon Article 12 of the Massachusetts Declaration of Rights, which stipulated a defendant's right to trial by a jury of peers. Although every jury need not mirror the community, a trial jury should be as near an approximation of the ideal cross-section of the community as random selection allows. For this reason, Liacos wrote in Commonwealth v. Soares (1979), allowing members of discrete groups to be excluded by peremptory challenges "would leave the right to a jury drawn from a representative cross section of the community wholly susceptible to nullification." Article 1 of the Declaration of Rights delineated those traits that may not form the basis for striking potential jurors: sex, race, color, creed, or national origin.⁵⁴

The court's decision significantly limited the impact of bias toward women jurors. Massachusetts attorneys were no longer permitted to eliminate a potential woman juror because she supposedly fit a stereotype that made her unfit or undesirable for a jury. Although the court did not keep official records of the use of peremptory challenges before 1979, anecdotal evidence suggests that both prosecutors and defense lawyers routinely used peremptory challenges to strike women jurors. Male prosecutors often struck potential woman jurors in a capital case, especially if the trial centered on a woman or a handsome man. Defense lawyers used their peremptory challenges in an equally biased manner: if a defendant had been charged with a violent crime against a spouse or a person of the opposite sex, the defense used a peremptory challenge to eliminate potential jurors of the same sex as the defendant. The SJC's ruling in Soares drove such expressions of crude gender bias from the courtroom.⁵⁵

In 1994, fifteen years after the SJC prohibited the discriminatory use of peremptory challenges, the Supreme Court finally accepted the equal protection argument women's rights advocates had been making since the nineteenth century. An Alabama mother seeking to establish paternity used her peremptory challenges to strike nine of ten men from the venire. Lawyers for the alleged father used all but one of their peremptory challenges to strike women members of the panel. Writing for the majority, Justice Harry Blackmun found that "intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women." Blackmun refused to accept the state's rationale for gender-based peremptory challenges, finding those arguments "reminiscent of the arguments advanced to justify the total exclusion of women from juries." Striking individual jurors on the assumption they hold particular views simply on the basis of gender, Blackmun concluded, echoing views articulated by Elizabeth Cady Stanton nearly a century and a half before, "denigrates the dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation."⁵⁶

Thirty years after the passage of the Nineteenth Amendment, Massachusetts women won the right to serve on juries. It was only a partial victory. The belief that women ought to be confined to the roles of homemaker, wife, and mother continued to block full implementation of women's claim to legal equality. Long after women demanded freedom from the constraints of Victorian morality, protectionism, and conservative jurisprudence, the courts permitted discriminatory treatment of prospective women jurors, giving free rein to the full panoply of negative stereotypes of women. Finally, in 1979 the Massachusetts Supreme Judicial Court vindicated itself by declaring unconstitutional peremptory challenges aimed at eliminating women from a jury simply because of their gender. Fifteen years later the Supreme Court mandated an end to gender bias in the selection of jurors throughout the United States. After seventy-four years, women finally won their fight to serve on juries on the same basis as men.

ALAN ROGERS, a professor of history at Boston College, is completing a history of capital punishment in Massachusetts.

NOTES

^1. The quotation in the title is from Carrie Chapman Catt's speech to the Jubilee Convention of the National American Woman Suffrage Association, Mar. 24, 1919, as quoted in Louis M. Young, In the Public Interest: The League of Women Voters, 1920–1970 (Westport, Conn., 1989), 33. See Marlene S. Wortman, ed., Women in American Law (New York, 1983), 1:193–196, for Elizabeth Cady Stanton's 1854 address to the New York legislature in which she demanded a woman's right to serve on a jury. Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, eds., History of Woman Suffrage, 1876–1885 (Rochester, N.Y., 1886), 3:731–738, 4:38, 45, 51. For data about state laws regulating jury service for women, see Dorothy Kenyon and Pauli Murray, Memorandum in Support of ACLU Proposal to Amend S. 2923, Civil Rights Protection Act of 1966, 36–37, Sarah Ehrmann Papers, Box 2, Northeastern University. In Hoyt v. Florida, 368 U.S. 57, 64 (1961), the Supreme Court said nothing in the Constitution required a state to include women on juries, but in 1968 the Jury Selection Act declared that all litigants in federal courts were entitled to trial by jury selected at random from a fair cross section of the community. 28 U.S.C. secs. 1861–1869, and Taylor v. Louisiana, 419 U.S. 522 (1975), extended this mandate to state courts. Acts and Resolves of the Great and General Court of Massachusetts, 1949 (Boston, 1950), chap. 347; Commonwealth v. Soares, 377 Mass. 461 (1979). For the history of peremptory challenges in Massachusetts, see Alan Rogers, "'An anchor to the windward': The Right of the Accused to an Impartial Jury in Massachusetts Capital Cases," Suffolk University Law Review (forthcoming).

^2. Quoted in Stanton, et al., A History of Woman Suffrage, 2:747, 4:182; Jennie Loitman Barron, "Arguments in Favor of Bill Making Women Liable for Jury Service," Barron Papers, f. 105, Schlesinger Library. A powerful argument for women's distinctiveness was made by Susan Glaspell, "A Jury of Her Peers," in The Best Short Stories of 1917, ed. E. J. O'Brien (Boston, 1918), 256–282. For a survey of negative and positive cultural stereotypes about women jurors, see Carol Weisbrod, "Images of the Woman Juror," Harvard Women's Law Journal 9(1986):59.

^3. Massachusetts Anti-Suffrage Committee, The Case Against Woman Suffrage (Boston, 1915), 43–44; Public Interest League of Massachusetts, flyer (Boston, 1917); Women's Anti-Suffrage Association of Massachusetts, flyer (Boston, 1915), Women's Anti-Suffrage Literature, Misc. Pamphlets, Broadsides, Photos and Posters, Massachusetts Historical Society.

^4.Hoyt v. Florida, 368 U.S. 57, 62 (1961).

^5.Arthur Prentice Rugg, A Memorial (Worcester, Mass., 1939), 4–5, 16, 38, 46, 43.

^6. Arthur P. Rugg, Rugg, A Memorial, 47, 49, 51, 57, 58, 46.

^7. Rugg to Judge DeCourcy, Jan. 14, 1921, Box 61, Arthur P. Rugg Papers, Massachusetts Historical Society (hereafter MHS); Rugg's letter to the chief justices of state supreme courts, Jan. 18, 1921, Box 61, Rugg Papers; Arthur D. Hill, Feb. 28, 1921, Box 61, Rugg Papers. Rugg also sent a letter to his fellow chief justices asking about the effect of the 19th Amendment, Apr. 3, 1922, Box 33, Rugg Papers, MHS.

^8. J. W. Dawson, "Woman Suffrage," Catholic World 112(Nov. 1920):145, 153; Frederick Finigan, quoted in Boston Globe, Feb. 9, 1921; Frank Grinnell, Massachusetts Law Quarterly 6(May 1921):137–138. Massachusetts Law Quarterly abbreviated hereafter as MLQ. Also see Grinnell's letters to Rugg, Box 32, Rugg Papers, MHS. Grinnell reprinted writings about women jurors from the English Solicitor in MLQ 6(May 1921):134–140.

^9.Boston Globe, Mar. 12, 1921; The General Laws of Massachusetts (Boston, 1917), chap. 234. For the text of the proposed House bill, see Opinion of the Justices to the House of Representatives, 237 Mass 591, 592–593 (1921).

^10.Opinion of the Justices to the House of Representatives, 237 Mass 591, 594–595 (1921).

^11.People v. Barltz, 212 Mich. 580, 585 (1921); Commonwealth, Appellant v. Maxwell, 271 Pa. 378, 389, 390–391 (1921); State v. Walker, 192 Iowa 823, 833, 835–836, 840 (1921). Although the Pennsylvania and Iowa reports appeared after Rugg wrote his advisory opinion, he had been told of the decisions before he wrote his opinion. See William Schaffer to Rugg, Feb. 2, 1921, and Preston to Rugg, Jan. 22, 1921, Box 61, Rugg Papers, MHS.

^12. Theodore Brantly to Rugg, Jan. 22, 1921, Box 61, Rugg Papers; Walter Frank to Rugg, Jan. 21, 1921, Box 61, Rugg Papers; William A. Johnston to Rugg, Jan. 22, 1921, Box 61, Rugg Papers, MHS. In his letter, Frank added: "with women casting over half the votes in this State, even the most reactionary politicians are reluctant to assert that women do not come within the [all persons] definition."

^13. Young, In the Public Interest, 59–61; Cornelius Dalton, et al., Leading the Way: A History of the Massachusetts General Court (Boston, 1984), 244–245.

^14. In a letter to Rugg, Dec. 27, 1922, Grinnell stated that he had received a request from an officer of the Women's Legislative Council to write a leaflet opposed to women jurors, and that he had agreed to do so, Box 32, Rugg Papers, MHS.

^15. [Frank Grinnell,] MLQ 8(1923):39–41, 47.

^16. B. Loring Young, MLQ 8(1923):38, 41; Boston Bar Association, MLQ 8(1923):47–50; Florence Kelly, MLQ 7(1922):164. Grinnell also reprinted a horror story about a mixed jury in Philadelphia that "educated" a young woman about "crap shooting" and "rough" language, MLQ 7(1922):47–50. It seems likely that Grinnell prompted Nutter, his close friend and president of the Boston Bar Association and of the Massachusetts Bar Association, to carry out the survey. Florence Kelly's opposition to the ERA and to compulsory jury duty originally appeared in a Jan. 22, 1922, New York Times article. In the same issue of MLQ, Grinnell used an article by Professor Ernest Freund that originally appeared in the American Bar Association Journal (Dec. 1921), 658.

^17. Frank Grinnell, MLQ 7(1922):32–33. Upon his retirement in Jan. 1923, Allen was very critical of the jury system, particularly in Boston. He called for the appointment of an independent panel to oversee the selection of jurors. Attorney William Scharton blasted Allen's proposal as "class legislation" prompted by his worry that "too many people of foreign blood" sat on juries, Boston Globe, Feb. 16, 1923.

^18.Report of the Commission on Jury Service, Senate Doc. No. 41 (Dec. 15, 1923). Hereafter Jury Commission.

^19.Jury Commission, 11, 22, 15, 29–30.

^20.Jury Commission, 27–28.

^21.Jury Commission, 33, 34, 35, 36.

^22.Jury Commission, 40–41, 43, 42, 44–45.

^23.Boston Globe, Feb. 14, 1924; Journal of the Massachusetts Senate (Boston, 1925), 33, 51; Journal of the Massachusetts House of Reprsentatives (Boston, 1925), 102, 367. Born in Boston in 1891, Barron received a law degree in 1913 from Boston University Law School. Her testimony was published as a pamphlet by the League of Women Voters, Jury Service for Women (Washington, D.C., 1924).

^24. Barron, Jury Service for Women, 4–5, 8.

^25.Literary Digest, Sept. 17, 1921, 46–49; Boston Globe, Apr. 1, 1923; Elizabeth M. Sheridan, "Women and Jury Service," ABA Journal 11(Dec. 1925):792, 795, 797. For a sketch of Willebrandt, see Virginia G. Drachman, Sisters in Law: Women Lawyers in Modern American History (Cambridge, Mass., 1998), 242–243.

^26.Boston Globe, Feb. 14, 1923; Boston Globe, Sept. 18, 1923.

^27. Dalton, Leading the Way, 245.

^28.Commonwealth v. Welosky, 276 Mass. 398, 310 (1931); Commonwealth v. Welosky, SJC Records and Briefs, Defendant's Substitute Bill of Exceptions, Feb. 25, 1931, 1, 2, Supreme Judicial Court Archives.

^29.Commonwealth v. Welosky, Brief of the Commonwealth, 3–8, SJC Archives.

^30.Commonwealth v. Welosky, Defendant's Brief, 8, 9, SJC Archives. Attorney George Roewer, whose name also appeared on the brief, was in contact with the National Women's Party.

^31. Defendant's Brief, 9–11, SJC Archives.

^32. Defendant's Brief, 27–28, SJC Archives.

^33.Commonwealth v. Welosky, SJC Records and Briefs, Amicus Curiae Brief, Submitted by the League of Women Voters, May 1931, 3–5, 6, 7, 10, SJC Archives.

^34. Amicus Brief, 13–15, SJC Archives.

^35. Amicus Brief, 22–25, SJC Archives.

^36.Commonwealth v. Welosky, 276 Mass. 398, 404–405, 407, 408, 411 (1931).

^37.Commonwealth v. Welosky, 276 Mass. 398, 412–415; Strauder v. West Virginia, 100 U.S. 303, 310 (1880); In Re Lockwood, 154 U.S. 116 (1894). The U.S. Supreme Court denied certiorari in Welosky, 284 U.S. 684 (1932).

^38. Dalton, Leading the Way, 245; Journal of the Massachusetts House of Representatives (Boston, 1939) 67, 349, 713, 748; U.S. v. Ballard, 322 U.S. 78 (1940); Journal of the Massachusetts House of Representatives (Boston, 1941), 162. Born in Boston in 1890, Culter graduated from Radcliffe College and studied biology at MIT before she became involved in politics. She served in the Massachusetts House from 1939 to 1948 and in the state Senate from 1949 to 1968. Cutler died in 1971. Donnelly's Who's Who of the Legislature (Boston, 1945), 134.

^39.Journal of the Massachusetts House of Representatives (1941), 769-770, 825, 840.

^40. "Uncle Sam Needs Women Jurors," Christian Science Monitor, June 12, 1943.

^41.Journal of the Massachusetts House of Representatives (Boston, 1943), 62, 509, 593, 1225–1227; Journal of the Massachusetts House of Representatives (Boston, 1946), 60, 846, 1019, 1497.

^42.Boston Globe, Oct. 23, 1946; Boston Globe, Nov. 6, 1946; Boston Herald, Nov. 2, 1946.

^43. Leslie Cutler, quoted in the Boston Globe, Nov. 7, 1946; Frank Grinnell, MLQ 32(Feb. 1947):36–38. The final tally on the referendum was 608,471 to 367,749; Boston Globe, Nov. 6, 1946. Using his position as a state delegate to the ABA's House of Delegates, Grinnell also opposed passage of a federal jury bill that would have required women to serve on federal juries regardless of state law, MLQ 32(Oct. 1947):33–35. According to the Judicial Code of 1947, chap. 275, 28, USC, sec. 411, jurors in a federal court were required to have the same qualifications as those of the highest court in the state. With the Judicial Code of 1948, Congress established uniform qualifications for federal jurors, 28 USC sec. 1861. The first Massachusetts women were called for federal jury duty in 1950, Boston Globe, Aug. 24, 1950. The Civil Rights Act of 1957 made citizens eligible to serve on federal juries without regard to sex, and without regard to state law, 28 USC sec. 1861.

^44.Journal of the Massachusetts House of Representatives (Boston, 1948), 76, 523, 783, 1574–1575, 1631–1632, 1841, 1863.

^45.Journal of the Massachusetts Senate (Boston, 1949), 66, 443, 674, 716, 931; Journal of the Massachusetts House of Representatives (Boston, 1949), 127, 1007, 1249; Acts and Resolves (1949), chap. 347. In addition to the "embarrassment" loophole, section 2 of the law also allowed a trial judge to excuse any "person" from jury service "if it appears that the public interest will be served by excusing" that person or if it would "impose undue hardship or unusual inconvenience upon any person." This provision was widely understood to apply chiefly to women. More than 50 women attended the law's signing, Boston Globe, May 27, 1949. One month after the jury eligibility law went into effect, the first women students were admitted to Harvard Law School, Boston Globe, Aug. 1, 1950. Of the 19 states in 1950 that required women to serve on the same basis as men, 6 had adopted the requirement during the war years, 1943–1947.

^46.Boston Globe, July 5, 10, 1951. Neither woman had children living at home.

^47. Ciolek's trial, Springfield Union, Nov. 5, 1953, and Chester's trial, Boston Sunday Advertiser, Nov. 10, 1957, were given wide coverage, but neither newspaper commented about or elicited any comment from the women who served on a capital jury for the first time in the county's history. It's interesting to note that the three women and nine men on the Ciolek jury recommended that the death sentence not be imposed, whereas the three women and nine men who made up the Chester jury made no such recommendation.

^48.New York Times, Apr. 4, 1951; Drachman, Sisters in Law, 208–210 (hats in the courtroom); Boston Traveler, Nov. 17, 1954; Boston Herald, Feb. 24, 1961.

^49.Brunson v. Commonwealth, 369 Mass. 106, 110–111 (1975).

^50.Taylor v. Louisiana, 419 U.S. 522, 524, 525, 530 (1975). Taylor's death sentence was annulled and set aside by the Supreme Court of Louisiana in accord with the U.S. Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972).

^51.Taylor v. Louisana, 419 U.S. 522, 531–532, 534–535, 537 (1975). A few days later, however, the Court held that Taylor did not apply retroactively. Therefore, the SJC denied Barabra Brunson's motion to dismiss her indictment for possession of heroin with intent to distribute it because the 1974 Suffolk County selected potential jurors in an unconstitutional manner. Writing for a unanimous court, Justice Francis Quirico first noted with pride how quickly the chief justice of the Superior Court had moved to bring the courts of Suffolk County into line with Taylor. If Brunson's trial began today, wrote Quirico, a jury in which "women were fairly represented" would try her; Brunson v. Commonwealth, 369 Mass. 106, 115 (1975). In dictum, the court also dealt with the question of grand juries, finding that women were sufficiently represented on Boston grand juries to come within the Taylor guidelines and that the probability of prejudice was more remote in terms of the function of grand jury than that of a trial jury, Brunson v. Commonwealth, 119–120. In Commonwealth v. Core, 370 Mass. 369, 371 (1976), the SJC ruled that while women may have been underrepresented on the jury list at the time of Core's trial, "any harm to the defendant was alleviated by the manner in which the jury in this case were actually selected pursuant to the orders of the trial judge."

^52.Acts and Resolves (1949), chap. 347, sec. 2; Commonwealth v. Morgan, 369 Mass. 332, 334–335 (1975).

^53.Journal of the Massachusetts House of Representatives (Boston, 1978), 41A, 263, 391; Journal of the Massachusetts Senate (Boston, 1978), 51A, 218, 248; Acts and Resolves (1978), chap. 41.

^54.Commonwealth v. Soares, 377 Mass. 461, 463, 473, 477, 486, 488-489n33 (1979). Liacos articulated a rule for the misuse of peremptory challenges that applied to the defendant and to the Commonwealth. Either party might rebut the presumption that a peremptory challenge was used properly to eliminate a potential juror whose bias might affect the outcome of the case. If a trial judge concluded that an attorney had used a peremptory challenge to strike a member of a protected group, the offending attorney had the opportunity to defend his action. If the judge found the attorney's explanation unsatisfactory, he might overrule the challenge or dismiss the jury pool and start the selection process anew. Commonwealth v. Soares, 377 Mass. 461, 490–491 (1979).

^55. David Gaw was charged with murdering his wife; at trial in Suffolk Superior Court, the state peremptorily challenged four potential women jurors, Boston Record, Nov. 4, 1953. When William van Rie, "a handsome cruise ship officer," stood trial for the murder of a woman passenger, the state challenged three of four potential women jurors; the court excused a fourth because she opposed capital punishment, Boston Herald, Feb. 2, 11, 1960. When Dr. William Sutcliffe, Jr., stood trial for murdering his wife, "The defense challenged nine prospective women jurors in a successful attempt to establish an all-male panel," Boston Traveler, Nov. 19, 1963. For examples of the court's application of Soares, see Commonwealth v. Reid, 384 Mass. 247 (1981), and Commonwealth v. Fruchtman, 418 Mass. 8 (1994).

^56. In J.E.B. v. Alabama, 511 U.S. 127, 130–131, 138, 139, 140, 142 (1994), the Court extended the logic of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibited the use of peremptory challenges to eliminate a potential juror because of race, to include women.

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"Finish the fight"The Struggle for Women's Jury Service in Massachusetts, 1920–1994

ALAN ROGERS

"Finish the fight"
The Struggle for Women's Jury Service in Massachusetts, 1920–1994