In 1718, Hannah Penn1 led the women’s suffrage movement in Pennsylvania for equal rights of women. She did so while serving as proprietary ruler over the Pennsylvania colony after the demise of her husband, William Penn, founder of Pennsylvania.2 Philadelphia became the largest city and Pennsylvania became “by far the largest state in which women had not previously had the right to vote.”3
For 150 years or so, this movement took a “back seat” to conflicts including Revolutionary, American Indian, and Civil Wars. In 1869, the first organized effort of the women suffragists in Pennsylvania was held in Philadelphia. Suffragettes courageously led marches and conducted protests. After a long, difficult struggle, in 1920, the suffragettes won on the federal level with the ratification of the Nineteenth Amendment, thereby guaranteeing all women the right to vote. And that same year, Pennsylvania ratified the Nineteenth Amendment, officially adding the right for women to vote to the Pennsylvania Constitution. The struggle appeared to be over, and the Nineteenth Amendment was expected to be applied by the states in all related aspects such as jury duty. However, did states such as Pennsylvania readily accept and incorporate the federal Nineteenth Amendment into their jurisdictions? Various court opinions demonstrate how state courts in Pennsylvania addressed potential barriers to implementing the Nineteenth Amendment for women’s jury service and voting rights. Focusing on just three opinions decided within a few years of the adoption of the Nineteenth Amendment reveals differing outcomes on how courts addressed the issues.
One of the earliest significant Nineteenth Amendment cases in Pennsylvania is Commonwealth of Pennsylvania v. Maxwell, which dealt with the ability of women to be qualified as jurors under the federal Nineteenth Amendment.4 In Maxwell, the Pennsylvania Supreme Court, after the federal Nineteenth Amendment had been ratified, encountered “the important question [of] whether women are eligible to serve as jurors in Pennsylvania.”5 With a Grand Jury Wheel composed of 19 women out of 60 potential jurors, Anna Sullivan was selected and served as a grand juror that, among other things, indicted Fred Maxwell and Edward Williams for murder.
Defendants moved to quash the indictments due to a female being permitted to serve on the grand jury, and an Erie County trial judge granted the motion and quashed the defendants’ murder indictments. The trial court judge reasoned that the federal Nineteenth Amendment could not alter “the ancient rule that men only may serve” on a grand jury under the Pennsylvania statute and the common law.6 The trial court judge had examined the common law in Blackstone’s Commentaries for any references to women as potential jurors but instead found references to “men” and “gentlemen” as being the only individuals qualified for jury duty.7 The trial court judge emphasized that “under the word homo, also, though a name common to both sexes, the female however is excluded” for jury duty.8 However, a woman could serve as a juror where another woman was involved in the case such as “when a widow feigns herself with child, in order to exclude the next heir, and a suppositious birth is suspected to be intended; then upon the writ de ventre inspiciendo, a jury is to be impaneled to try the question, whether with child or not.”9 Before the Nineteenth Amendment, women were only qualified to serve as jurors in cases where the males in authority preferred to have women jurors assist in deciding.
Before the Pennsylvania Supreme Court, the Maxwell opinion started by analyzing historical law on the point, starting with Pennsylvania’s first Constitution of 1776, and how “justice had been administered in the Commonwealth according to English forms for about a century.”10 The Pennsylvania Supreme Court quoted existing law, which stated: “‘Trial by jury shall be as heretofore and the right thereof remain inviolate,’ preserves in this State trial by jury as it existed at common law, and that neither the federal amendment nor its effect upon the Act of April 10, 1867 (P. L. 62; Pa. St. 1920, § 12860 et seq.), providing for the selection of jurors, alters the ancient rule that men only may serve.”11 The Pennsylvania Supreme Court then queried: “Does the word ‘heretofore’ refer to jury trials as conducted in England or in Pennsylvania?”12 The Pennsylvania Supreme Court dispensed with the trial judge’s reasoning as to the controlling law being common law.13 Instead, the Pennsylvania Supreme Court found “the method of selecting juries and the qualifications of jurors, at the time of the promulgation of this Constitution, September 28, 1776, was regulated in Pennsylvania and in England by legislation, and not by the common law. . . .”14 The Pennsylvania Supreme Court further noted the procedure for composition of jurors is not “fastened upon the American jurisprudence like a straight-jacket. . . .”15 The Pennsylvania Supreme Court logically concluded that the Act of 1867 constitutionally required juries be selected “from the whole qualified electors of the respective county” persons that are “sober, intelligent and judicious persons” as well as “the 19th Amendment to the federal Constitution putting women in the body of electors.”16 The Pennsylvania Supreme Court held: “We entertain no doubt however that women are eligible to serve as jurors in all the commonwealth’s courts.”17
The trial court case of In re Hanna’s Election Contest18 involved Catharine Agnew, who attempted to vote after her husband paid her occupation tax, payment of which was a requirement for voting in Pennsylvania at the time. In her challenge, the court noted the effect of the Nineteenth Amendment was to remove the “thickly dotted with masculine pronouns”19 nature of Pennsylvania election laws. Due to the Nineteenth Amendment’s effect of striking out of Pennsylvania laws the word “male,” the trial judge indicated the law now applies to both sexes and is redone to read: “Every citizen twenty-one years of age possessing the qualifications (enumerated in it) shall be entitled to vote at all elections.”20 Apparently, in the 1920s, in order to be qualified to vote, electors had to provide proof that they themselves were able to pay their occupation tax and failure to do so and prove so was a crime. When Agnew went to cast her ballot and it was discovered her husband had paid her occupation tax, was her husband guilty of a crime? Agnew had no separate income, but the payment of her occupation tax became a necessity by law, wherein persons would be imprisoned for nonpayment.
The narrow issue in In re Hanna’s Election Contest was whether, by voting on a receipt for an occupation tax paid for her by her husband, without a written and signed order by her authorizing him so to do, Agnew was an illegal voter.21 To consider this question, the trial court judge considered “the spirit of the act and the mischief which it was intended to remedy.”22 The so-called mischief to prevent was “the indiscriminate and wholesale payment of poll or occupation taxes by campaign committees of the several political parties.”23 Apparently, such “mischief” occurred by political parties in the larger cities to “control virtually” the votes of the voters by political parties paying the taxes and holding these receipts.24
Despite the Nineteenth Amendment’s effect to provide women with the separate right to vote, In re Hanna’s Election Contest found married couples were considered to be “one person” under the law for other purposes. The trial court judge turned the tables, so to speak, to note that
there certainly would be no object to be attained by applying the act where the wife pays the taxes of the husband, with his money, at his own door, to the collector who is on his rounds to gather them; not only is she the natural agent of the husband in any personal or domestic matter, but she is so identified with him in the eyes of the law that they are often regarded as one person. To say that she cannot pay his taxes, if they happen to be poll or occupation taxes, without a written authority from him, under penalty of being convicted of a misdemeanor, seems absurd, and we are safe in saying that no such idea was in contemplation when the act was passed; it is not within its mischief, and while it may be contrary to its strict letter, it does not violate its spirit, and we will not so construe it.25
This logic worked to achieve the spirit of the law to permit spouses, whether male or female, to pay the other spouse’s occupation taxes without the permission of the other. A game changer indeed was applied and displayed in this 1924 case.
In the intermediate appellate court case of Commonwealth v. Garletts,26 the Pennsylvania Superior Court dealt with the issue of whether a legal grand jury was drawn “from a wheel which contained only names of male electors of Fayette County, and from which all female electors of said county were excluded.”27 The president judge and jury commissioners did not believe women were eligible as jurors and supported their position on the basis that no suitable accommodations existed for women jurors. The evidence included the following list: no waiting room for women; no adequate toilets for women; no separate rooms for women jurors to which to they could retire when actually serving upon juries; only one toilet to be used in common by three jury rooms in which juries were deliberating; and cots available for male jurors to sleep on as no beds were available. When a jury was required to deliberate for days and nights, women members had no privacy when all members of the jury were to sleep together under the law. The trial court judge had upheld the elimination of women as jurors because “reasonable regard for propriety and decency suggested that the women be not required to endure the hardships and the offensive and objectionable experiences to which jury duty would subject them.”28
The Pennsylvania Superior Court found it “reasonable to hold that women ought not to have been required to serve immediately after their enfranchisement, during the period of time necessary for the preparation of such quarters as to permit of their serving without undue hardship.”29 Moreover, the Pennsylvania Superior Court noted the defendant in the instant case was a male, and because all male names were placed in the jury wheel, this defendant was not aggrieved and not deprived of equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution. Precedential law existed that indicated “the right guaranteed by that constitutional provision only inures to the benefit of a defendant who is a member of the race or class discriminated against, the race or class which is denied the equal protection of the law.”30 Case law revealed “a man has no standing to complain that his constitutional rights have been violated when women were improperly deprived of their right to serve as jurors.”31 The Pennsylvania Superior Court cited to the Kentucky court case of Commonwealth v. Wright,32 wherein “a white man indicted by a grand jury composed wholly of persons of the white race, had no standing to complain that he was deprived of a constitutional right upon the ground of the exclusion of . . .” African Americans as jurors.33 Despite the ruling by the Pennsylvania Supreme Court in Maxwell based on the Nineteenth Amendment, the intermediate court permitted lower courts to disenfranchise Pennsylvania women on the basis of the lack of suitable accommodations for women jurors. Recognizing the appellate court at that time lacked diversity, the question is whether a diverse court would have permitted the lack of “suitable” accommodations to defeat the right of women to serve on juries.34
As the courts have evolved years later, precedential cases in states such as Pennsylvania demonstrate the significant role the Nineteenth Amendment has played in providing equal justice for women. Today, we value diversity and mandate diversity without any excuses such as a lack of accommodations to interfere with the rights of women. We appreciate the pioneers who led in achieving significant changes with the passage of the Nineteenth Amendment. We have come a long way, and our journey must continue to ensure diversity and justice for all. It has taken a long time, but now, more than 300 years later, Hannah Penn’s vision truly has come to fruition.
1. Hannah Penn is one of the few individuals and the first woman to be given the status of Honorary Citizen of the United States, given to her by Presidential Proclamation upon an Act of Congress by Ronald Reagan on November 28, 1984. Colonial Women: Hannah Penn, Hist. of Am. Women, http://www.womenhistoryblog.com/2008/10/hannah-callowhill-penn.html.
2. Jennie Bradley Roessing, The Equal Suffrage Campaign in Pennsylvania, 56 Annals of Am. Acad. of Pol. & Soc. Sci. 153 (Nov. 1914), https://www.jstor.org/stable/1011990?seq=3#metadata_info_tab_contents.
3. Pennsylvania Women and the Quest for Women’s Suffrage, Hist. Soc’y of Pa., https://hsp.org/education/unit-plans/pennsylvania-women-and-the-quest-for-womens-suffrage.
4. 114 A. 825, 271 Pa. 378 (1921).
5. Id. at 379.
6. Id. at 380.
7. Commonwealth of Pennsylvania v. Maxwell et al., Erie Cty. L.J., vol. III, at 77, 87 (1921).
10. Maxwell, 271 Pa. at 381.
11. Id. at 380. (emphasis added).
13. Id. at 385.
14. Id. at 381.
15. Id. at 388.
16. Id. at 390.
18. 5 Pa. D. & C. 139 (1924),
19. Id. at 142.
21. Id. at 143.
23. Id. at 144.
26. 81 Pa. Super. 271 (1923).
27. Id. at 272–73.
28. Id. at 273–74.
29. Id. at 276.
32. Id. (citing Commonwealth v. Wright, 79 Ky. 22 (Ct. App. 1880)).
34. Id. at 276–77.