Part 23

“Boutillier tells us that a woman could not hold the office of attorney or of advocate. ‘For know, that a woman, in whatever state she may be, married or unmarried, cannot be received as procurator for any person whatever. For she was forbidden (to do) any act of procuration because of Calphurnia, who considered herself wiser than any one else; she could not restrain herself, and was continually running to the Judge without respect for formalities, in order to influence him against his opinion.’ (Somme Rural, Edit. Mace, Paris, 1603, L. i. tit. x. p. 45.) Further on, designating those ‘who may be advocates in court and who not,’ Boutillier cites as incapable minors, the deaf, the blind, clerks, sergeants, and women. ‘For women are excluded because of their forwardness, like Calphurnia, who could never endure that her side should be beaten nor that the judge should decide against her, without speaking forwardly to the judge or to the other party.’ (_Id._ L. ii. tit. ii. p. 674.)... In Germany as in France, the inferiority of woman was justified upon the same grounds. ‘No woman,’ says the _Miroir de Souabe_, ‘can be guardian of herself nor plead in court, nor do it for another, nor make complaint against another, without an advocate. They lost this through a gentlewoman named Carfurna, who behaved foolishly in Rome before the ruler.’” (_Miroir de Souabe_, T. ii. ch. xxiv., Lassberg, 245.)

The prohibition against women acting as advocates, or barristers, the latter being the term used to designate the office in England, wherever adopted, has continued in force to the present time outside of the United States of America. In England women are permitted to qualify for and practice as attorneys at law and solicitors in chancery, but have not been permitted to become barristers and exercise the rights of that rank in the prosecution of their cases. Were it not for the Calphurnian decree, they still would be ineligible because of being denied admission to the four Inns of Court, where barristers are trained and ranked. These Inns of Court are voluntary societies from whose power to reject applications for membership there is no appeal.

The common law of England becoming the law of this country, its women were thought also ineligible to admission to the bar, and but one woman, so far as we know, attempted to test the matter until within the last quarter of a century. This exception was a very notable one in colonial days. It was the case of Margaret Brent, spinster and gentlewoman. She and her sister Mary, kinswomen of the first Lord Proprietary and Governor of Maryland, came to the Province in 1638, “bringing over nine colonists, five men and four women. They took up manors, imported more settlers, and managed their affairs with masculine ability.” So says William Hand Browne in his “History of a Palatinate.” The Governor, Leonard Calvert, died the 9th of June, 1647, leaving Mistress Brent his sole executrix. At the time of his death, he was attorney for his brother, Cecilius Calvert, second Lord Baltimore, the Lord Proprietary. Mistress Brent succeeded him as attorney for his lordship. Her right to act in this capacity, which she at first claimed “on the strength of her appointment as executrix,” was questioned in the provincial court, where she had occasion frequently to appear in regard to his lordship’s “private estate and transactions in the Province.” The Court ordered that she “should be received as his lordship’s attorney.” The question came up in court on the 3d day of January, 1648, of which record was made as follows:

“This day the question was moved in court whether or noe, Mr. Leon. Calvert (remayning his L^{p’s} sole attorney within this Province before his death, and then dying) the said Mr. Calvert’s administrator was to be received for his L^{p’s} Attorney within this Province untill such time as his Lordship had made a new substitution, or that some other remayning uppon the present Commission were arrived into the Province. The Governor demanding Mr. Brent’s opinion upon the same Quere. Hee answered that he did conceive that the administrator ought to be looked uppon as attorney both for recovering of rights into the estate and paying of dew debts out of the estate and taking care for the estate’s preservation: But not further, untill his Lordship shall substitute some other as aforesaid. And thereuppon the Governor concurred. It was ordered that the administrator of Mr. Leon Calvert aforesaid should be received as his L^{p’s} Attorney to the intents above.” (Archives of Maryland, vol. iv. p. 358.)

The provincial court records show that Mistress Brent not only frequently appeared in court as his lordship’s attorney, in which capacity she continued to act for some years, but also in prosecuting and defending causes as attorney for her brother, Capt. Giles Brent, and in regard to her personal affairs, and as executrix of Leonard Calvert’s estate (the record calls her “administrator”; she was appointed by the testator to execute his will). There is no record of any objection being made to her practicing as attorney on account of her sex. At that time the provincial court at St. Mary’s “was the chief judicial body in the Province, being not only a court of first instance for all matters civil, criminal, and testamentary for the city and county of St. Mary’s, but having also appellate jurisdiction over the county courts. It was composed of the Governor as presiding judge, and one or more of the members of the council as associate judges.” (Archives of Maryland, vol. iv. preface.)

Unmindful of the words “but not further” in the opinion, Mistress Brent asked for voice and vote in the General Assembly on account of her position as his lordship’s attorney. This request was denied. Whether her sex entered into the denial is a question without solution. The Assembly proceedings for January 21, 1648, make mention of the fact in these words:

“Came Mistress Margarett Brent and requested to have vote in the howse for herselfe and voyce allso, for that att the last court, 3^d Jan., it was ordered that the said Mistress Brent was to be looked uppon and received as his L^{p’s} Attorney. The Gov^r denyed that the said Mistress Brent should have any vote in the howse. And the said Mistress Brent protested against all proceedings in this present Assembly, unlesse shee may be present and have vote as aforesaid.” (Archives of Maryland, vol. i. p. 215.)

The first woman since the days of Mistress Brent to ask for and obtain admission to the bar of this country was Arabella A. Mansfield of Mt. Pleasant, Iowa. She studied in a law office and was admitted to the Iowa bar in June, 1869, under a statute providing only for admission of “white male citizens.” The examining committee in its report, which is of record, said:

“Your committee have examined the provisions of section 2700 of chapter 114, of the Revision of 1860, concerning the qualifications of attorneys and counselors in this State [section 2700 provided for the admission of “white male persons.” Ed.], but in considering the section in connection with division 3 of section 29, chapter 3 of the Revision, on construction of statutes [section 29 provided that “words importing the masculine gender only may be extended to females.” ED.], we feel justified in recommending to the court that construction which we deem authorized, not only by the language of the law itself, but by the demands and necessities of the present time and occasion. Your committee take unusual pleasure in recommending the admission of Mrs. Mansfield, not only because she is the first lady who has applied for this authority in this State, but because in her examination she has given the very best rebuke possible to the imputation that ladies cannot qualify for the practice of law.”

At the time of Mrs. Mansfield’s debut into the profession without opposition, Myra Bradwell, of Chicago, having studied law under the instruction of her husband, ex-Judge James B. Bradwell, was unsuccessfully knocking at the door of the Supreme Court of Illinois for admission. To give an understanding of the case, and line of argument used in denying her application, we extract from the opinion of the Court, delivered by Mr. Justice Lawrence, the following:

“Mrs. Myra Bradwell applied for a license as an attorney at law, presenting the ordinary certificates of character and qualifications. The license was refused, and it was stated, as a sufficient reason, that under the decisions of this court, the applicant, as a married woman, would be bound neither by her express contracts, nor by those implied contracts, which it is the policy of the law to create between attorney and client.

“Since the announcement of our decision, the applicant has filed a printed argument, in which her right to a license is earnestly and ably maintained. Of the qualifications of the applicant we have no doubt, and we put our decision in writing in order that she, or other persons interested, may bring the question before the next Legislature.... It is to be remembered that at the time the statute was enacted [the statute under which admission was sought, which provided that “no person shall be permitted to practice as an attorney or counsellor at law,” etc. ED.] we had, by express provision, adopted the common law of England, and, with three exceptions, the statutes of that country passed prior to the fourth year of James the First, so far as they were applicable to our condition. It is also to be remembered that female attorneys at law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of bishops, or be elected to a seat in the House of Commons. It is to be further remembered that when our act was passed, that school of reform which claims for women participation in the making and administering of the laws, had not then arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action. That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth. It may have been a radical error, but that this was the universal belief certainly admits of no denial. A direct participation in the affairs of government, in even the most elementary form, namely, the right of suffrage, was not then claimed, and has not yet been conceded, unless recently, in one of the newly settled territories of the West.... But it is not merely an immense innovation in our own usages, as a court, that we are asked to make. This step, if taken by us, would mean that, in the opinion of this tribunal, every civil office in this State may be filled by women; that it is in harmony with the spirit of our constitution and laws that women should be made governors, judges, and sheriffs. This we are not prepared to hold.... There are some departments of the legal profession in which woman can appropriately labor. Whether, on the other hand, to engage in the hot strifes of the bar, in the presence of the public, and with momentous verdicts the prizes of the struggle, would not tend to destroy the deference and delicacy with which it is the pride of our ruder sex to treat her, is a matter certainly worthy of her consideration. But the important question is, what effect the presence of women as barristers in our courts would have upon the administration of justice, and the question can be satisfactorily answered only in the light of experience.” (Supreme Court Reports of Illinois, vol. lv. p. 535.)

The Supreme Court of Illinois having refused to grant to Mrs. Bradwell a license to practice law in the courts of that State, she appealed the case to the Supreme Court of the United States, where the judgment of the State court was affirmed. She was there ably represented by Mr. Matthew Hale Carpenter. Mr. Justice Miller delivered the opinion of the court. In affirming the judgment, the refusal being made on the ground that women are not eligible under the laws of Illinois, the court held that “such a decision violates no provision of the Federal Constitution”; that the right to practice law in the State courts is not “a privilege or immunity of a citizen of the United States, within the meaning of the first section of the fourteenth article of amendment of the Constitution of the United States”; and that “the power of a State to prescribe the qualifications for admission to the bar of its own courts is unaffected by the fourteenth amendment, and this court cannot inquire into the reasonableness or propriety of the rules it may prescribe.” (16 Wallace’s Reports, Supreme Court U. S., p. 130). Mr. Justice Bradley, while concurring in the judgment, gave expression to his views in a separate opinion in which he took occasion to say that, “The constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womankind.” The Chief Justice, Salmon P. Chase, “dissented from the judgment of the court, and from all of the opinions.”

The Legislature of Illinois, in 1872, enacted that “No person shall be precluded or debarred from any occupation, profession, or employment (except military) on account of sex.” But Mrs. Bradwell, ever since being occupied with editorial work on the _Chicago Legal News_, which she founded in 1868, and with the publication of Bradwell’s Appellate Court Reports and other legal works, did not renew her application for a license to practice law. The sequel is this, copied from the _Chicago Legal News_ of April 5, 1890: “We are pleased to say that last week, upon the original record, every member of the Supreme Court of Illinois cordially acquiesced in granting, on the Court’s own motion, a license as an attorney and counselor at law to Mrs. Bradwell.”

The next court case was that of Mrs. Belva Ann Lockwood, of Washington, D. C., who graduated from the Law School of the National University, and was admitted to practice before the Supreme Court of the District, in 1873. The same year a motion was made for her admission to the bar of the U. S. Court of Claims. This Court refused to act upon the motion, “for want of jurisdiction.” The opinion concludes in these words: “The position which this Court assumes is that under the Constitution and Laws of the United States a court is without power to grant such an application, and that a woman is without legal capacity to take the office of attorney.” (Court of Claims Reports, vol. ix. p. 346.)

At the October term, 1876, of the Supreme Court of the United States, Mrs. Lockwood applied for admission as practitioner of that court. Her application was denied. The decision has not been officially reported, but, upon the record of the Court, it is thus stated: “Upon the presentation of this application the Chief Justice said that, notice of this application having been previously brought to his attention, he had been instructed by the Court to announce the following decision upon it: By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are admitted to practice before it as attorneys and counselors. This is in accordance with immemorial usage in England, and the law and practice in all the States, until within a recent period; and the Court does not feel called upon to make a change until such a change is required by statute or a more extended practice in the highest courts of the States.”

Mrs. Lockwood continued practicing before the courts of the District and elsewhere, outside of United States courts, until Congress passed a bill providing, “That any woman who shall have been a member of the bar of the highest court of any State or Territory, or of the Supreme Court of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States” (Approved, Feb. 15, 1879). Mrs. Lockwood drafted the bill and secured its passage. She was the first woman to be admitted under the law and to practice before this Supreme Court. (Since then, six others have been admitted, viz.: Laura De Force Gordon of Stockton, California; Ada M. Bittenbender of Lincoln, Nebraska; Carrie Burnham Kilgore of Philadelphia; Clara M. Foltz of San Diego, California; Lelia Robinson-Sawtelle of Boston, and Emma M. Gillet of Washington, D. C. Mrs. Bittenbender moved the admission of Miss Gillet, the first instance of one woman moving the admission of another to the highest court in the country.) A few days after Mrs. Lockwood’s admission, she received word from the Court of Claims that she could now plead before it.

The next State court to be heard from on the subject was the Supreme Court of Wisconsin, in 1875. The matter was the motion to admit Miss R. Lavinia Goodell to the bar of that court. Miss Goodell, the year before, had been admitted to the bar of the circuit court of Rock county in that State. The argument, read on the hearing of the motion by I. C. Sloan, Esq., was prepared by her. The motion was denied, it being held that “To entitle any person to practice in this court, the statute requires that he shall be licensed by its order, and no right to such an order can be founded on admission to the bar of a circuit court. The language of the statute relating to the admission of attorneys (which declares that ‘_he_ shall first be licensed,’ etc.) applies to males only; and the statutory rule of construction that ‘words of the masculine gender _may_ be applied to females,’ ‘unless such construction would be inconsistent with the manifest intention of the Legislature,’ cannot be held to extend the meaning of this statute, in view of the uniform exclusion of females from the bar by the common law, and in the absence of any other evidence of a legislative intent to require their admission.” Chief Justice Ryan delivered the opinion of the Court. The following extract from that opinion we believe will be read with interest, and remain of historic value as showing the fossilized misconceptions woman combated with in attaining the generally acceptable position in the legal profession in this country which she now holds:

“We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well-being of society; and, to be honorably filled and safely to society, exacts the devotion of life. The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as in the profession of the law, are departures from the order of nature; and when voluntary, treason against it. The cruel chances of life sometimes baffle both sexes, and may leave women free from the peculiar duties of their sex. These may need employment, and should be welcome to any not derogatory to their sex and its proprieties, or inconsistent with the good order of society. But it is public policy to provide for the sex, not for its superfluous members; and not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours. There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife. Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battlefield. Womanhood is molded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice; all the unclean issues, all the collateral questions of incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, divorce.”

Ah, dear sir, it is largely to “mix professionally in all the nastiness of the world which finds its way into courts of justice,” that many, very many women seek admission to the bar. In every case involving any one of the “unclean issues” or “collateral questions” you have named, some woman must appear as complainant or defendant, or be in some way associated. What more proper, then, than that some other woman should be in court, clothed with legal power, to extend aid and protection to her sister in trouble, that justice may be done her, and the coarse jest and cruel laugh, so proverbial in social impurity cases before woman’s advent as pleader, prevented! And we respectfully call upon the mothers of every land to see to it that in no instance in the future of the world shall a woman be summoned to the bar of justice as a party or witness in any case involving one of these “unclean issues” or “collateral questions” without being accompanied by one or more of her own sex of irreproachable character. When such emergencies are otherwise unprovided for, let the “good mothers of Israel” in the place convene and depute one or more of their number to perform this duty. It is a duty, unquestionably, to be performed in the interest not only of one sex, but of mankind generally; for what affects one sex for good or evil, affects both.

Aye, Mr. Chief Justice, “the profession enters largely into the well-being of society”; and it is because of this fact woman desires and ought to enter it. This is the best of reasons. As to her motherhood prerogatives, experience has shown her able to perform these as the Father of the Universe and Mother Nature would have her, and still not to be precluded from giving the profession the necessary “devotion” to the end that it shall be “honorably filled and safely to society.” If “the law of nature destines and qualifies the female sex ... for the custody of the homes of the world and their maintenance in love and honor,” as you say, Mr. Chief Justice,—we say “if” because we believe the male sex to be joint-heir,—that does not mean that all women, or any woman, should stay inside of four walls continually to cook, wash dishes, sweep, dust, make beds, wash, iron, sew, etc. Oh, no! A woman may properly act as the custodian of a home and maintain it in love and honor, and do none of these things. Instead of such “life-long callings of women” being “departures from the order of nature, and, when voluntary, treason against it,” as you think, Mr. Chief Justice, we hold that to stifle the longings of an immortal soul to follow any useful calling in this life, to be a “departure from the order of nature, and, when voluntary, treason against it.”