Was it legal? Downey questions Seating women on jury in 1870

The legality of women exercising their right to vote in all general elections and hold office in Wyoming Territory was established on December 10, 1869, when Governor John Campbell signed into law an act granting women those rights. Much praise was sent Wyoming’s way on the progressive move.

But not everyone agreed. It would be put to the test in Laramie the following March.

Attorney and Civil War veteran Col. Stephen W. Downey, who had arrived in Wyoming from Maryland early in 1869, was busy seeking gold in the nearby mountains and running his law practice when Governor Campbell appointed him Albany County Attorney on December 8, 1869, to succeed E. L. Kerr.

One of Downey’s first appearances in the territorial courts was early the next year in the March 1870, term of the Wyoming Territory First District Court held in Laramie with Chief Justice, John Howe, of the Wyoming Territory Supreme Court presiding.

Women Jurors?

Downey was responsible for prosecuting cases involving various crimes including murder, cattle rustling and horse stealing. His results were to be overshadowed, however, by a first in the annals of world jurisprudence; six women were called and served on a jury.

Court was scheduled to convene on Monday March 7th; Downey became aware of women likely being called to jury duty the prior week. On the 2nd he sent a letter to Justice Howe regarding the legality of women serving as jurors.

The exact content of the letter is not known but can be deduced from Associate Justice John Kingman’s later remarks on the letter. Kingman, who was assisting Howe, said:  “At this stage of the case, Col. Downey, the prosecuting attorney for the county, wrote to Judge Howe for advice and direction as to the eligibility of women as jurors, and what course should be taken in the premises.”

On March 3rd, Justice Howe sent his reply to Downey, “I have your favor of yesterday and have carefully considered the question of the eligibility of women who are ‘citizens’ to serve on Juries. Mr. Justice Kingman has also considered the question & we concur in the opinion that such women are eligible” (underlined in the original letter).

Both justices agreed that the right to serve on a jury was an extension of the right granted women under the December 10, 1869, Suffrage Act. That would seem to have put the issue to rest.

Controversy Arises

But the question of why Downey faced this innovation in the first place is interesting. Why were women called, did he have any role in that, would he take any additional steps to try to bar them, and if so, why?

According to later writings by Justice Kingman referring to female suffrage and females being put in the jury pool, “There was very little public sentiment in the Territory at that time in favor of it and much bitter feeling against it. This feeling showed itself at the first session of the District Court after passage of the act. This Court was to be held at Laramie City in Judge Howe’s district, and the county officers, thinking to throw ridicule on the act and trouble for the judge, summoned nearly all the respectable women in the city as jurors, making both the grand and petit juries largely composed of women.”

Kingman, who slightly exaggerated the number of women, made no reference to Downey. But Downey would likely have been aware of the move as the three county commissioners, L. T. Wilcox, T. D. Abbott and Henry Wagner of Laramie, were well known Republicans like Downey and had also been appointed by Governor Campbell.

Another, contradictory, reason that women may have been put in the jury pool was that some felt women were needed to influence the men to pay closer attention to the proceedings and be more stringent in enforcing the law.

Sarah Pease, the only juror to give an extended personal account, told the Boomerang in 1889 that this was necessary because the town had not yet fully settled down from its wild “end of tracks” days. In short the reasoning went, “The women would clean up the town.” This should have been welcomed by the county attorney and may have caused Downey to be of two minds on the issue.

Males Only?

The women were called and Downey clearly knew what the court’s stance was on the issue. However, when the grand jury session began on March 7th, he asked the court to exclude the women. Justice Howe reiterated his stance and the six ladies were seated.

 Why then would Downey try to exclude the women? There are two probable reasons. Downey’s daughter, Alice Downey Nelson in her book on the Downey family, gives the first reason, “It was his duty to challenge the validity of women being allowed to serve as jurors. It seemed to him a violation of all approved social customs to ask ladies to assume any duties as grim and unpleasant as jury service involved."

The second reason was that Downey, as an attorney who had been practicing for six years, knew what the Wyoming Territory statutes said. On December 7, 1869, the Wyoming Territory Legislative Assembly passed an act declaring only males were qualified to be jurors.

As that law was passed before the Suffrage Act of December 10, 1869, he would have reasoned that it took precedence over the later act that granted women the right to vote and to hold public office. Additionally, the Suffrage Act said nothing about juries.

Women Seated

Justices Howe and Kingman, however, disallowed the challenge and the women were seated. That would seem to have set a precedent, moving women’s rights one step forward. And women did serve on juries again in 1871.

Justice Howe, however, left the bench and his successor had a different view. He prohibited jury service by women and with one exception in the 1880’s women did not serve on juries again in Wyoming until 1950, following the state legislature clarifying statutory jury requirements to give women the right to fully participate.

It should be noted that Downey went on to be a champion of the Suffrage Act. In 1871 he argued strenuously against efforts to repeal the Act. When the Territorial Legislative Assembly did vote to repeal the act, governor Campbell vetoed the move. The assembly voted to override the veto, but that effort failed by one vote. Downey voted to sustain the governors veto.

By Kim Viner

Caption:  Stephen W. Downey (1839-1902) Photo courtesy of Peter Boutin.