WESTERN LEGAL HiSTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VoLUME 21, NUMBER 1 2008 Western Legal History is published semiannually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, (626) 795-0266/fax (626) 229-7476. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts- particularly the federal courts-in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Western Legal History is sent to members of the NJCHS as well as members of affiliated legal historical societies in the Ninth Circuit. Membership is open to all. 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Because Western Legal History publishes articles that present the historical record as accurately as possible, it occasionally publishes quotations containing such language. The publication of such is not to be construed as representing the attitudes of either the authors or Western Legal History. Communication with the editor is encouraged before submission of any manuscript. At that time, other guidelines for the preparation and publication of an article may be discussed. Consultation about punctuation, grammar, style, and the like is made with the author, although the editor and the Editorial Board are the final arbiters of the article's acceptance and appearance. Articles published in this journal are abstracted and indexed in America: History and Life; HistoricalAbstracts; the Index to Legal Periodicals;and the Legal Resources Index, NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY BOARD OF DIRECTORS HON. JAMES R. BROWNING HON. SUSAN Y. ILLSTON Chairman San Francisco San Francisco CURTIS A. JENNINGS, ESQ, MARC M. SELTZER, ESQ. Phoenix President HON. ROBERT J. JOHNSTON Los Angeles Las Vegas JEFFREY M. FISHER, ESQ, MICHAEL A. KAHN, ESQ. Vice President San Francisco San Francisco ROBERT D. LOWRY, ESQ. JOHN FRANCIS CARROLL, ESQ. Eugene Treasurer TIMOTHY M. LYNCH, ESQ. San Pedro Anchorage GARETH T. EVANS, ESQ. THOMAS J. MCDERMOTT, JR., ESQ. Secretary Indian Wells Los Angeles HON. M. MARGARET MCKEOWN GERSHAM GOLDSTEIN, ESQ. San Diego Immediate Past President GERALD T. MCLAUGHLIN, ESQ. Portland Los Angeles J. BRUCE ALVERSON, ESQ. HON. MARGARET M. MORROW Las Vegas Los Angeles SETH ARONSON, ESQ. HON. GERALDINE MUND Los Angeles Woodland Hills LEROY J. BARKER, ESQ. TERRY NAFISI Anchorage San Francisco JEROME I. BRAUN, ESQ. HON. THOMAS G. NELSON San Francisco Boise CHRISTINE W.S. BYRD, ESQ, RONALD L. OLSON, ESQ. Los Angeles Los Angeles JOHN CARSON, ESQ. HON. DIARMUID O'SCANNLAIN Los Angeles Portland HON. DAVID 0. CARTER PER A. RAMFJORD, ESQ. Santa Ana Portland HON. RICHARD R. CLIFTON HON. MANUEL L. REAL Honolulu Los Angeles WILLIAM I. EDLUND, ESQ. HON. PAUL G. ROSENBLATT San Francisco Phoenix HON. MORRISON C. ENGLAND, JR. HON. MARY M. SCHROEDER Sacramento Phoenix ROBERT H. FAIRBANK, ESQ. GERALD K. SMITH, ESQ. Los Angeles Phoenix PARKER C. FOLSE III, ESQ. HON. CHRISTINA ANN SNYDER Seattle Los Angeles PAUL T. FRIEDMAN, ESQ. ROBERTS. WARREN, ESQ. San Francisco Los Angeles FREDERICK P. FURTH, ESQ. MICHAEL A. WHITE, ESQ. San Francisco Saipan HON. LLOYD D. GEORGE DOUGLAS R. YOUNG, ESQ. Las Vegas San Francisco HON. ALFRED. T. GOODWIN Pasadena HON. RONALD M. GOULD BOARD MEMBERS EMERITI Seattle PETER R. HABEIN, ESQ. SHIRLEY M. HUFSTEDLER, ESQ. Billings Los Angeles RITA M. HAEUSLER, ESQ, HON. SAMUEL P. KING Los Angeles Honolulu HON. PROCTER HUG. JR. HON. JOSEPH T. SNEED Reno San Francisco WESTERN LEGAL HiSTORY BRADLEY B. WILLIAMS, EDITOR JUDITH FORMAN, COPY/PRODUCTION EDIoR EDITORIAL BOARD JUDITH AUSTIN ARTHUR D. HELLMAN Boise University of Pittsburgh GORDON MORRIS BAKKEN School of Law California State University, DAVID J. LANGUM Fullerton Samford University MICHAL BELKNAP Cumberland School of Law California Western CLARE V. MCKANNA, JR. School of Law San Diego State University HON. JAMES R. BROWNING R. JAMES MOONEY Senior Circuit Judge, University of Oregon U.S. Court of Appeals Law School for the Ninth Circuit CLAUS-M. NASKE ELIZABETH J. CABRASER, ESQ. University of Alaska, San Francisco Fairbanks LAWRENCE M. FRIEDMAN PAULA PETRIK, PH.D. Stanford Law School George Mason University CHRISTIAN G. FRITZ PETER L. REICH University of New Mexico Whittier Law School School of Law JOHN PHILLIP REID DALE GOBLE New York University University of Idaho School of Law School of Law HARRY N. SCHEIBER, PH.D. HON. ALFRED T. GOODWIN University of California Senior Circuit Judge, Boalt Hall School of Law U.S. Court of Appeals MOLLY SELVIN, PH.D. for the Ninth Circuit Santa Monica PAUL BRYAN GRAY, ESQ. ROBERT S. WOLFE, ESQ, Claremont Santa Ana MICHAEL GRIFFITH, PH.D. JOHN R. WUNDER, J.D., PH.D. Oakland University of Nebraska STEPHEN W. HAYCOX, PH.D. University of Alaska, Anchorage WESTERN LEGAL HISTORY VOLUME 21, NUMBER 1 WINTER/SPRING 2008 CONTENTS Writing for Their Lives: The Clarion 1 and Inmates at the California Institution for Women, Tehachapi Kathleen Cairns The Struggle by Western Women 25 to Serve on Juries, 1870-1954 Janolyn Lo Vecchio The John Marshall Clemens Law Ledger: 55 A Legal Vestige of the American Frontier Tim Jon Sernmerling Book Reviews 83 Articles of Related Interest 93 Memberships, Contributions, & Grants 99 Cover photo: An American flag sewn by inmates at the California Institute for Women is displayed by two staff members; inmates also published The Clarionnewspaper, which is the subject of Kathleen Cairns' article in this issue. (Courtesy of the California Department of Corrections and Rehabilitation) WRITING FOR THEIR LIVES: THE CLARION AND INMATES AT THE CALIFORNIA INSTITUTION FOR WOMEN, TEHACHAPI KATHLEEN CAIRNS .. n our salute last month to the gentlemen in grey at Atlanta prison for their outstanding contribution to this war, the malaria project, we bollixed up a perfectly good tribute by listing one chap as Louise Chastain. He has sent us word that it strictly ain't so, that he is a very manly character indeed!" These words were penned in August 1944 by Gene Dayton- a woman-in The Clarion, the inmate newspaper published monthly at the California Institution for Women, Tehachapi. The irony of possessing a "man's" name (or at least the spell- ing) and misidentifying "Louis" as "Louise" seemed to escape Dayton, a convicted forger. She went on to explain her lapse: "We really have no alibi unless we offer an expert's opinion handed to us by a very kind husband we once had: 'my wife is not clumsy-she is just in the abstract.' So there it is Looie, Louis or Louise; being in the abstract does not alter the fact that you are still fine, brave men."' The Clarion was one of nearly two hundred inmate newspa- pers published at American penal institutions between the two world wars, a period that media scholar James Morris calls the "heyday" of prison journalism. But the Tehachapi effort was somewhat unusual. The vast majority of inmate publications 'Gene Dayton, "The Walrus Said," The Clarion, August 1944, p. 10. Kathleen Cairns teaches history and women's studies at Cal Poly San Luis Obispo. She is the author of Hard Time at Tehachapi: California'sFirst Women's Prison, published by the University of New Mexico Press. 2 WESTERN LEGAL HiSTORY Vot.. 21, No. 1 The Clarion, published by women inmates at the California Institution for Women, Tehachapi, was the only prison publication in the country printed on the prison premises. (Earl Warren Papers, courtesy of the California State Archives) WlNTER/SrRING 2008 WRITING FOR THEIR LIVES 3 came from men's prisons. Only a handful of women's institu- tions had newspapers. Others included the Massachusetts Reformatory in Framingham, the Indiana Reformatory in India- napolis and the Federal Reformatory for Women in Alderson, West Virginia.' The lopsided numbers are not really surprising. Journalism had long been considered a "male" profession. The few female reporters worked in "soft" feature sections, penning stories about society, fashion, and food. But in the interwar period, a few women began to cross the threshold to the newsroom, where they worked alongside rough-hewn and hard-drinking men and covered male "beats"-crime, politics, and war. Few observers would place female inmates in the same category as women reporters, no matter what kind of news they covered.