Part 24

A law was promptly enacted enabling women to practice law in Wisconsin, under which Miss Goodell was admitted to the Supreme Court of the State.

Next following Miss Goodell’s case, came that of Lelia J. Robinson of Boston, in 1881, the Supreme Judicial Court holding that under the laws of Massachusetts “an unmarried woman is not entitled to be examined for admission as an attorney and counselor of this court.” In the opinion of the Court it is stated that “this being the first application of the kind in Massachusetts, the Court, desirous that it should be fully argued, informed the executive committee of the Bar Association of the city of Boston of the application, and has received elaborate briefs from the petitioner in support of her petition, and from two gentlemen of the bar as _amici curiæ_ in opposition thereto.” The statute under which the application was made provided that, “A citizen of this State ... may, on the recommendation of an attorney, petition the Supreme Judicial or Superior Court to be examined for admission as an attorney, whereupon the Court shall assign a time and place for the examination, and if satisfied with his acquirements and qualifications he shall be admitted.” The Court said that “the word ‘citizen,’ when used in its most common and most comprehensive sense, doubtless includes women; but a woman is not, by virtue of her citizenship, vested by the Constitution of the United States, or by the Constitution of the Commonwealth, with any absolute right, independent of legislation, to take part in the government, either as a voter or as an officer, or to be admitted to practice as an attorney.” (Mass. Supreme Court Rep., vol. cxxxi. p. 376.) The opinion was delivered by Chief Justice Gray. The Legislature, in 1882, passed a statute providing for the admission of women upon the same terms as men. Miss Robinson, now Mrs. Sawtelle, immediately took the examination and was admitted to the Suffolk County Bar. The next year the Legislature extended the powers of women attorneys in an act “to authorize the Governor to appoint women who are attorneys-at-law special commissioners to administer oaths and to take depositions and the acknowledgment of deeds.” This legislation became necessary on account of a decision of the Supreme Court of the State in which it was held that “a woman cannot lawfully be appointed a justice of the peace, or, if formally appointed and commissioned, lawfully exercise any of the functions of the office.” (Mass. Supreme Ct. Rep., vol. cvii. p. 604.) The power “to issue summonses for witnesses” was added in an act of 1889.

Mary Hall of Hartford, Connecticut, in 1882, after having completed the prescribed term of study and passed the required examination, applied to the Superior Court in Hartford county for a license to practice law. The statute under which her application was made provided that the Superior Court “may admit as attorneys such persons as are qualified therefor agreeably to the rules established by the judges of said court.” This statute had “come down, with some changes, from the year 1750, and in essentially its present form from the year 1821.” The bar of Hartford county “voted to recommend the admission of the applicant subject to the opinion of the Court whether, as a woman, she could be legally admitted, and appointed Messrs. McManus and Collier to argue the case before the Court.” The Court reserved the application for the advice of the Supreme Court. The latter Court “held, that under the statute a woman could be admitted as an attorney.” This being contra to the holdings of the United States and State courts in similar cases, which we have cited, was refreshing indeed. The opinion merits quotation quite at length. It was delivered by Chief Justice Park. The part selected reads:

“No one would doubt that a statute passed, at this time, in the same words would be sufficient to authorize the admission of women to the bar, because it is now a common fact and presumably in the minds of legislators, that women in different parts of the country are and for some time have been following the profession of law. But if we hold that the construction of the statute is to be determined by the admitted fact that its application to women was not in the minds of the legislators when it was passed, where shall we draw the line? All progress in social matters is gradual. We pass almost imperceptibly from a state of public opinion that utterly condemns some course of action to one that strongly approves it. At what point in the history of this change shall we regard a statute, the construction of which is to be affected by it, as passed in contemplation of it? When the statute we are now considering was passed it probably never entered the mind of a single member of the Legislature that black men would ever be seeking for admission under it. Shall we now hold that it cannot apply to black men? We know of no distinction in respect to this rule between the case of a statute and that of a constitutional provision.... Events that gave rise to enactments may always be considered in construing them. This is little more than the familiar rule that in construing a statute we always inquire what particular mischief it was designed to remedy. Thus the Supreme Court of the United States has held that in construing the recent amendments of the Federal Constitution, although they are general in their terms, it is to be considered that they were passed with reference to the exigencies growing out of the emancipation of the slaves, and for the purpose of benefiting the blacks. But this statute was not passed for the purpose of benefiting men as distinguished from women. It grew out of no exigency caused by the relation of the sexes. Its object was wholly to secure the orderly trial of causes and the better administration of justice.... We are not to forget that all statutes are to be construed, as far as possible, in favor of equality of rights. All restrictions upon human liberty, all claims for special privileges, are to be regarded as having the presumption of law against them, and as standing upon their defense, and can be sustained, if at all by valid legislation, only by the clear expression or clear implication of the law.

“We have some noteworthy illustrations of the recognition of women as eligible, or appointable to office under statutes of which the language is merely general. Thus, women are appointed in all parts of the country as postmasters. The act of Congress of 1825 was the first one conferring upon the Postmaster-General the power of appointing postmasters, and it has remained essentially unchanged to the present time. The language of the act is, that “the Postmaster-General shall establish post-offices and appoint postmasters.” Women are not included except in the general term “postmasters,” a term which seems to imply male persons.... The same may be said of pension agents. The acts of Congress on the subject have simply authorized “the President, by and with the advice and consent of the Senate, to appoint all pension agents, who shall hold their offices for the term of four years, and shall give bond,” etc. At the last session of Congress a married woman in Chicago was appointed for a third term pension agent for the State of Illinois, and the public papers stated that there was not a single vote against her confirmation in the Senate. Public opinion is everywhere approving of such appointments. They promote the public interest, which is benefited by every legitimate use of individual ability, while mere justice, which is of interest to all, requires that all have the fullest opportunity for the exercise of their abilities.... We have had pressed upon us by the counsel opposed to the applicant, the decisions of the courts of Massachusetts, Wisconsin, and Illinois, and of the United States Court of Claims, adverse to such an application. While not prepared to accede to all the general views expressed in those decisions, we do not think it necessary to go into a discussion of them, as we regard our statute, in view of all the considerations affecting its construction, as too clear to admit of any reasonable question as to the interpretation and effect which we ought to give it.” (Conn. Supreme Ct. Rep., vol. 1. p. 131).

We have a record showing that there were fifty-six women attorneys in the country at the time this last decision was rendered, in July, 1882, of whom thirty-one had graduated from law schools. Five of the fifty-six have gone to the spirit land. The first to go was Lemma Barkaloo, of Brooklyn, N. Y., the second to be enrolled as an attorney, and the first to try a case since the days of Mistress Brent. She was refused admission to the Law Department of Columbia College, and entered that of Washington University at St. Louis, in 1869. Without completing the course, she was admitted to the Circuit Court of St. Louis, and to the Supreme Court of the State in 1870. She died the same year of typhoid fever. The St. Louis Bar resolved “that in her erudition, industry, and enterprise, we have to regret the loss of one who, in the morning of her career, bade fair to reflect credit upon our profession and a new honor upon her sex.” Alta M. Hulett, of Chicago, died in 1877. She prepared the bill to secure admission of women in Illinois and lectured in its interest during its pendency. She was admitted on her nineteenth birthday. Ellen A. Martin, in speaking of her in an article on “Admission of Women to the Bar,” published in the initial number of the _Chicago Law Times_, says: “Miss Hulett was a young woman of remarkable energy and push, and of excellent ability and business judgment. She had tact and skill in the acquisition and management of business, and was a capable and efficient lawyer. She had a wonderful faculty for making friends who interested themselves in her success, and in the three years of her practice acquired an amount of profitable business that is not generally expected in law practice until after a much longer period. Her successful, and it may fairly be termed brilliant, career had a marked influence in producing a favorable attitude of the public toward woman practitioners.” Lavinia Goodell, daughter of the well-known Abolitionist, Rev. Wm. Goodell, was the pioneer lawyer of Wisconsin. She was admitted to the bar, after passing a brilliant examination, in 1873. The case which greatly extended her reputation throughout the State and country was one involving twelve hundred dollars, in which her client was a woman. The case was carried from the county court to the circuit court, and appealed from that to the supreme court, where she won. According to the law of Wisconsin, Miss Goodell’s admission to the circuit court admitted her to all courts in the State except the supreme court. Upon carrying up her case, and applying for admission to this, the chief justice (Ryan), refused her on the ground of sex. The arguments appear in substance in vol. xxxix. of Wisconsin reports.

She afterward reviewed the chief justice’s decision in the _Chicago Legal News_ and unquestionably had the better of him in argument. She also prepared a bill and sent it to the State Legislature, providing that no person should be refused admission to the bar on account of sex. A petition asking for its passage was signed by the circuit judge and every member of the bar in the county. In such high esteem was Miss Goodell’s practice held, that her best paying clients were women. She was admitted to the supreme court in 1875.

She did much work for temperance and woman suffrage, two subjects which were very near her heart. Her life was devoted to good deeds, which only ended here when she was called up higher. She died in 1880, in Milwaukee, where she had gone for medical treatment.

M. Fredrika Perry, of Chicago, died in 1883. She graduated from the Law School of Michigan University in March, 1875, was immediately admitted to the Michigan bar, and in the fall to the Illinois bar. Soon afterward, on motion of Miss Hulett, she was admitted to the United States circuit and district courts for the Northern District of Illinois, Miss Hulett being the first woman admitted to these courts and to any United States court. She continued in practice in partnership with Miss Martin, under the name of Perry & Martin, until her death (the result of pneumonia). Speaking of her, Miss Martin says: “Miss Perry was a successful lawyer and her success was substantial. She combined in an eminent degree the qualities which distinguish able barristers and jurists; her mind was broad and catholic, clear, quick, logical, and profound; her information both on legal and general matters was extensive. She had a clear, strong, and pleasant voice, and was an excellent advocate, both in presenting the law to the court and the merits of a case to the jury. She was a skillful examiner of witnesses, and understood as few attorneys do, save practitioners who have grown old in experience, the nice discriminations of Common Law Pleadings and the Rules of Evidence, the practical methods by which rights are secured in courts. All her work was done with the greatest care. She was engrossed in the study and practice of law, appreciating its spirit and intent, and gained steadily in efficiency and practical power, year by year. She had the genius and ability for the highest attainment in all departments of civil practice, and joined with these the power of close application and hard work. She belonged to the Strong family, which has furnished a great deal of the legal talent of the United States.” Judge Tuley, before whom she often appeared, said of her at the bar meeting called to take action upon her death, “I was surprised at the extent of her legal knowledge and the great legal acumen she displayed.” Tabitha A. Holton, of Dobson, North Carolina, died in 1886. She was admitted to the Supreme Court of the State in January, 1878, having passed a highly creditable examination. She practiced in Dobson, in partnership with her brother, Samuel L. Holton, devoting herself chiefly to office work and the preparation of civil cases, until a short time before her death.

Ada H. Kepley, of Effingham, Illinois, was the first woman to graduate from a law school in this or any other country. She took her degree in June, 1870, from the Union College of Law, Chicago.

The major part of law schools of the United States now freely admit women when applied to for that purpose. Among those still refusing are the law departments of Yale, Harvard, and Georgetown universities, and Columbia College; the Cumberland University Law School of Lebanon, Tennessee, the Law Department of the Washington and Lee University in Lexington, Virginia, and the Law Department of the University of Virginia. “One woman, however, does wear the honors of the degree of Bachelor of Laws as conferred by Yale. This is Alice R. Jordan, now Mrs. Blake, who, after a year of study in the Law School of Michigan University and admission to the bar of Michigan in June, 1885, entered the Law School at Yale in the fall of the same year, and graduated at the close of the course with the degree as already stated. Dean Wayland, of Yale Law School, sends me a catalogue of the University, and writes that the marked paragraph on page 25 is intended to prevent a repetition of the Jordan incident. The paragraph referred to appears on the page devoted to departments of instruction, and reads: ‘It is to be understood that the courses of instruction above described are open to persons of the male sex only, except where both sexes are specifically included.’”—(Lelia J. Robinson, LL.B., in an article on “Women Lawyers in the United States,” in _The Green Bag_, January, 1890.) As to the relative standing of the sexes as students in law schools, Hon. Henry Wade Rogers, dean of the department of law of Michigan University, says: “The women who have attended the Law School have compared favorably in the matter of scholarship with the men. They are just as capable of acquiring legal knowledge as men are.” This law school has graduated more women than any other in the country. Hon. Henry Booth, dean of Union College of Law, gives the standing of women in scholarship as that of a fair average, and says: “We discover no difference in the capacity of the sexes to apprehend and apply legal principles. We welcome ladies to the school and regard their presence an advantage in promoting decorum and good order.”

A law school for women has recently been opened in New York City. Its founder is Madame Emile Kempin-Spyri, a graduate of the School of Jurisprudence, of the University of Zurich, in 1887. Her application for admission to the order of advocates of her native country, Switzerland, being denied, she emigrated to the United States. She is the counsel of the Swiss Legation in Washington.[161]

Women lawyers of this country are entitled to practice before all courts, State and national, the same as male lawyers. When not admitted under existing statutes, the respective legislatures, so far, with two exceptions, have promptly passed enabling acts. Women anxious for admission were the first to advocate these. One exception to the usual legislative promptness is found in the case of Annie Smith, of Danville, Virginia. The Judge of the Corporation Court, to whom she applied in 1889 for a certificate to enable her to be examined, refused it on the ground that for a woman to obtain license the present statute would have to be amended. Mrs. Smith, aided by her husband, an attorney, vainly endeavored to secure the necessary enactment during the last session of the State Legislature. The bill, a general one, was voted down; but a private bill, to enable Mrs. Smith only to obtain license, was favorably reported. The Legislature, however, adjourned before final action on it. Mr. and Mrs. Smith will continue their efforts until successful.

The other exception was a prior one, but admission came without legislation. This is found in the case of Carrie Burnham Kilgore, of Philadelphia. Speaking of her twelve years’ struggle for admission, Miss Martin, in her article on “Admission of Women to the Bar,” already cited, says: “In December, 1874, Carrie Burnham (now Kilgore), of Philadelphia, began the long and tedious warfare that she has been obliged to wage for admission in Pennsylvania. The Board of Examiners refused to examine her, because there was ‘no precedent for the admission of a woman to the bar of this county,’ and the Court refused to grant a rule on the board requiring them to examine her. Mrs. Kilgore then tried to have a law passed forbidding exclusion on account of sex, but the Judiciary Committee of the Senate took the position that the law as it stood was broad enough, and so it would seem to be. The Act of 1834 declares, ‘The Judges of the several Courts of Record in the Commonwealth shall respectively have power to admit a competent number of persons of an honest disposition, and learned in the law, to practice as attorneys in their respective courts.’ The Senate finally passed the clause desired, at two or three sessions, but it was never reached in the House. Finally Mrs. Kilgore gained admission to the Law School of the University of Pennsylvania in 1881, where she had previously been denied, and by virtue of her diploma from there, in 1883, was admitted to the Orphans’ Court of Philadelphia. She was then admitted to one of the Common Pleas Courts, but denied admission to the other three, though it is the custom when a person has been admitted to one, to admit to the rest as a matter of course. As soon after admission to the Common Pleas Court as the law allows, two years, and in May of this year, 1886, Mrs. Kilgore applied and was admitted to the Supreme Court of the State, and by virtue of this admission, all the lower Courts are now compelled to admit her. Thus, Pennsylvania has accomplished after twelve years, what Iowa did seventeen years ago without any ado, and with a statute that might have afforded a reasonable ground for refusal, which the Pennsylvania statute did not.” Since her admission, Mrs. Kilgore has been in active general practice. Her husband, an able lawyer, in whose office she studied and worked, died two years ago, in 1888. He had a large clientage. After his death, Mrs. Kilgore was requested to take charge of his cases in all but one instance. She is the attorney for Harmon Lodge, I.O.O.F., and the Relief Mining and Milling Company. Several times she has been appointed master and examiner by the courts. A special correspondent of the _Chicago Daily Tribune_, in its issue of April 5, 1890, speaking of Mrs. Kilgore’s efforts and successes concludes with: “She has several interesting children and a delightful home, neither her struggle for woman’s rights nor her devotion to her professional concerns having interfered with her domestic duties nor estranged her from the hearth.”

This reminds us of many interesting cases of motherly care and devotion on the part of women practitioners, two of which we cannot refrain from mentioning. One is in regard to Ohio’s first woman lawyer, Annie Cronise Lutes, of Tiffin, who was admitted to practice before the courts of that State in April, 1873. Her sister, Florence Cronise, was admitted in September of the same year. These two sisters, since their admission, have pursued the steady, straight practice of law without deviation. For several years they were law partners. In 1880, Mrs. Lutes and her husband, who had been fellow students in the same office, and were admitted to the bar at the same time, formed a partnership. (This left Miss Florence to practice alone, which she has since done with signal success.) Mr. and Mrs. Lutes were married in 1874. They have three daughters. The two eldest (aged fourteen and twelve respectively) are attending the Heidelberg University, at Tiffin, taking the full classical course, _for which they were prepared under the instruction of their mother_, never having attended public school. The full force of this fact will become apparent further on. In 1881 Mr. Lutes became _totally deaf_. In a letter showing the extent of their law practice, which was published in the article on “Women Lawyers in the United States,” already cited, Mr. Lutes says:

“Our practice is general in character, and extends to the courts of this State and the United States courts for the Northern District of Ohio. The following facts will enable you to form an estimate as to the nature and extent of Mrs. Lutes’s practice and experience at the bar. The bar of this county has forty-five members. The total number of civil cases on the trial docket of the term just closed was 226; of that number, our firm was retained in fifty cases, which is probably a fair average of our share of the business for this county, and our practice also extends to a considerable extent to the adjoining counties of this district.”

Mr. Lutes’s infirmity necessarily imposes extra duties on his faithful partner, which the following extract from the _Chicago Daily Tribune_, of April 5, 1890, graphically pictures: “Mr. Lutes is totally deaf, but his wife sits by him in court and repeats word for word what is said, and although her lips make no audible sound, every word said by judge, jury, or opposing counsel is understood. Without her assistance he would be perfectly helpless, so far as his law practice is concerned. The two work together on every case that is brought to them, and it is seldom a person sees one without the other. Their practice is lucrative and extensive.”