These cases, involving the same questions, are presented together. As shown by the plaintiffs' brief, the plaintiffs claim the elective franchise under the first section of the XIV. Amendment of the Constitution. The fourth paragraph of the regulations of the Governor and Judges of the District, made registration a condition precedent to the right of voting at the election of April 20th, 1871. The plaintiffs, being otherwise qualified, offered to register, and were refused. They then tendered their ballots at the polls, with evidence of qualification and offer to register, etc., when their ballots were rejected under the seventh section of the act providing a government for the District of Columbia. Mrs. Spencer brings her suit for this refusal of registration, and Mrs. Webster for the rejection of her vote, under the second and third sections of the act of May 31, 1870. The seventh section of the organic act above referred to, limits the right to vote to "all male citizens," but it is contended that in the presence of the XIV. Amendment, the word male is without effect, and the act authorizes "all citizens" to exercise the elective franchise. The question involved in the two actions which have been argued, and which, for the purposes of judgment, may be regarded as one, is, whether the plaintiffs have a right to exercise within this jurisdiction, the elective franchise. The letter of the law controlling the subject is to be found in the seventh section of the act of February 21, 1871, entitled, "An Act to provide a government for the District of Columbia," as follows:
And be it further enacted, That all male citizens of the United States, above the age of twenty-one years, who shall have been actual residents of said District for three months prior to the passage of this act, except such as are non compos mentis, and persons convicted of infamous crimes, shall be entitled to vote at said election, in the election district or precinct in which he shall then reside, and shall have so resided for thirty days immediately preceding said election, and shall be eligible to any office within the said district, and for all subsequent elections, twelve months prior residence shall be required to constitute a voter; but the Legislative Assembly shall have no right to abridge or limit the right of suffrage.
It will be seen by the terms of this act that females are not included within its privileges. On the contrary, by implication, they are excluded. We do not understand that it is even insisted in argument that authority for the exercise of the franchise is to be derived from law. The position taken is, that the plaintiffs have a right to vote, independent of the law; even in defiance of the terms of the law. The claim, as we understand it, is, that they have an inherent right, resting in nature, and guaranteed by the Constitution in such wise that it may not be defeated by legislation. In virtue of this natural and constitutional right, the plaintiffs ask the court to overrule the law, and give effect to rights lying behind it, and rising superior to its authority.
The Court has listened patiently and with interest to ingenious argument in support of the claim, but have failed to be convinced of the correctness of the position, whether on authority or in reason. In all periods, and in all countries, it may be safely assumed that no privilege has been held to be more exclusively within the control of conventional power than the privilege of voting, each State in turn regulating the subject by the sovereign political will. The nearest approach to the natural right to vote, or govern—two words in this connection signifying the same thing—is to be found in those countries and governments that assert the hereditary right to rule. The assumption of Divine right would be a full vindication of the natural right contended for here, provided it did not involve the hereditary obligation to obey.
Again, in other States, embracing the Republics, and especially our own, including the States which make up the United States, this right has been made to rest upon the authority of political power, defining who may be an elector, and what shall constitute his qualification; most States in the past period declaring property as the familiar basis of a right to vote; others, intelligence; others, more numerous, extending the right to all male persons who have attained the age of majority. While the conditions of the right have varied in several States, and from time to time been modified in the same State, the right has uniformly rested upon the express authority of the political power, and been made to revolve within the limitations of express law.
Passing from this brief allusion to the political history of the question to the consideration of its inherent merits, we do not hesitate to believe that the legal vindication of the natural right of all citizens to vote would, at this stage of popular intelligence, involve the destruction of civil government. There is nothing in the history of the past that teaches us otherwise. There is little in current history that promises a better result. The right of all men to vote is as fully recognized in the population of our large centres and cities as can well be done, short of an absolute declaration that all men shall vote, irrespective of qualifications. The result in these centres is political profligacy and violence verging upon anarchy. The influences working out this result are apparent in the utter neglect of all agencies to conserve the virtue, integrity and wisdom of government, and the appropriation of all agencies calculated to demoralize and debase the integrity of the elector. Institutions of learning, calculated to bring men up to their highest state of political citizenship, and indispensable to the qualifications of the mind and morals of the responsible voter, are postponed to the agency of the dram-shop and gambling hell; and men of conscience and capacity are discarded, to the promotion of vagabonds to power.
This condition demonstrates that the right to vote ought not to be, and is not, an absolute right. The fact that the practical working of the assumed right would be destructive of civilization is decisive that the right does not exist.... It will be seen by the first clause of the XIV. Amendment, that the plaintiffs, in common with all other persons born in the United States, are citizens thereof, and, if to make them citizens is to make them voters, the plaintiffs may, of right, vote. It will be inferred from what has already been said, that to make a person a citizen is not to make him or her a voter. All that has been accomplished by this Amendment to the Constitution, or by its previous provisions, is to distinguish them from aliens, and make them capable of becoming voters.
In giving expression to my own judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters. The provision ends with the declaration of their citizenship. It is a constitutional provision that does not execute itself. It is the creation of a constitutional condition that requires the supervention of legislative power in the exercise of legislative discretion to give it effect. The constitutional capability of becoming a voter created by this Amendment lies dormant, as in the case of an infant, until made effective by legislative action. Congress, the legislative power of this jurisdiction, as yet, has not seen fit to carry the inchoate right into effect, as is apparent in the law regulating the franchise of this District. When that shall have been done, it will be the pleasure of this court to administer the law as they find it. Until this shall be done, the consideration of fitness and unfitness, merit and demerit, are considerations for the law-making power. The demurrer in these cases is sustained.
And be it further enacted, That all male citizens of the United States, above the age of twenty-one years, who shall have been actual residents of said District for three months prior to the passage of this act, except such as are non compos mentis, and persons convicted of infamous crimes, shall be entitled to vote at said election, in the election district or precinct in which he shall then reside, and shall have so resided for thirty days immediately preceding said election, and shall be eligible to any office within the said district, and for all subsequent elections, twelve months prior residence shall be required to constitute a voter; but the Legislative Assembly shall have no right to abridge or limit the right of suffrage.
After the reading of the opinion of the Court by Chief Justice Cartter, Mr. Riddle, counsel for the plaintiffs, in open court, prayed an appeal to the Supreme Court of the United States. And that highest tribunal affirmed the decision of Judge Cartter.
This contradictory decision of Judge Cartter averring that the XIV. Amendment clothed women with the capacity to become voters, but did not create them voters, afforded opportunity for criticism and ridicule. The Washington Sunday Morning Herald wittily reported[166] this trial in the Supreme Court of the District of Columbia.
On July 21st, 1871, Ellen Rand Van Valkenburg, of Santa Cruz, California, having applied for registration and been refused, brought suit against Albert Brown, of Brown County, who acted as Register upon this occasion. Although later suits exceeded this in interest it was notable for being the first decision under the new amendments.[167]
September 16, 1871, suit was brought by Carrie S. Burnham, an unmarried woman, residing in Philadelphia. She was duly assessed by the canvassers of the Fourteenth Ward of that city as a resident of the Eleventh Election District of that ward. Two days afterwards she paid her tax, and her name was registered on the canvassers' printed list of legal voters in that division. Having complied with all the laws regulating suffrage in Pennsylvania, she presented her ballot in legal form at the proper time and place at the general election, but her vote was refused. Her argument in the Court of Common Pleas and the opinion of the judge, will be given in the Pennsylvania chapter.
Mrs. Catharine V. Waite, of Illinois, also instituted suit for the refusal of her vote proffered in the fall of 1871, and received an adverse decision, a report of which will be found in the Illinois chapter.
Two years previous to these suits for the recognition of the political rights of women a contest of a different character was commenced in Illinois. Mrs. Myra Bradwell, editor of the Chicago Legal News, in September, 1869, having passed the examination, and received the required certificate of qualification, applied for admission to the bar of that State, which was refused by its Supreme court, on the ground that she was a woman. She made this denial of her civil rights a test case by bringing a writ of error against the State of Illinois in the Supreme Court of the United States. We copy from the Legal News of February 5, 1870:
A WOMAN CAN NOT PRACTICE LAW OR HOLD ANY OFFICE IN ILLINOIS.
Full Report of the Proceedings in the Supreme Court upon the Application of Myra Bradwell to be admitted to the Bar.
Licensing Attorneys.—The following extract from rule 76 shows what is required by the Supreme Court of applicants for admission to the bar:
Ordered, That rules 69 and 70 be rescinded, and applicants for license to practice law in the courts of this State, on presenting to any member of this court a certificate of qualification, signed by the Circuit Judge and State's Attorney of the circuit in which the applicant may reside, setting forth that the applicant has been examined and found qualified, will be a sufficient voucher on which to grant a license.
Certificate of Admission.—The undersigned have examined Mrs. Myra Bradwell as to her qualifications to enter upon the practice of the law, and finding her qualified therefor, recommended that a license should be issued to her.
E. S. Williams, Judge Seventh Judicial Circuit.
Charles H. Reed, State's Attorney.Chicago, Illinois, August 2, 1869.
Motion to be Admitted.—Robert Hervey, Esq., of the Chicago Bar, at the September term, kindly, at the request of the applicant, filed her certificate of examination and of character from Judge Jameson of the Superior Court of Chicago; also the following written application prepared by her, and moved the court that she be admitted:
Supreme Court of Illinois—Third Grand Division—September Term. 1869—(In the matter of the Application of Myra Bradwell for license to practice law.)
To the Honorable the Judges of the Supreme Court of Illinois: Now comes your petitioner, Myra Bradwell, a resident of Chicago, Ill., over twenty-one years of age, and presents to your honors, under rule 76 of this honorable court, the certificate of the Hon. E. S. Williams, Judge of the Circuit Court for the Seventh District, and the Hon. Charles H. Reed, State's Attorney for the said circuit, stating that they have examined your petitioner and found her qualified to practice law, and recommend that a license issue to her for that purpose, and also a certificate as to character from the Superior Court of Chicago, as required by the statute and the rule aforesaid, and moves your honors that an order of this honorable court may be entered directing a license to be given to your petitioner. Your petitioner suggests that the only question involved in her case is—Does being a woman disqualify her under the laws of Illinois from receiving a license to practice law?—and claims that the Legislature has answered this question in the negative. The first section of chapter eleven of the Revised Statutes, in regard to the admission of attorneys, is as follows:
No person shall be permitted to practice as an attorney or counselor-at-law, or to commence, conduct, or defend any action, suit, or plaint, in which he is not a party concerned, in any court of record within this State, either by using or subscribing his own name or the name of any other person without having previously obtained a license for that purpose from some two of the Justices of the Supreme Court, which license shall constitute the person receiving the same an attorney and counselor-at-law, and shall authorize him to appear in all the courts of record within this State, and there to practice as an attorney and counselor-at-law, according to the laws and customs thereof, for and during his good behavior in said practice, and to demand and receive all such fees as are or hereafter may be established for any services which he shall or may render as an attorney or counselor-at-law in this State.
Your petitioner claims that the pronoun he, not only in this section, but the whole chapter, is used indefinitely for any person, and may refer to either a man or woman.
The Legislature devoted the whole of chapter 90 to construing various expressions and words used in the Revised Statutes, and in section 28 said:
When any party or person is described or referred to by words importing the masculine gender, females as well as males shall be deemed to be included.
It is declared by Act No. 29, appendix to the Revised Statutes, that the several chapters composing the Revised Statutes shall be deemed and taken as one act.
It is evident that if a woman should practice law without a license, recover for her services, and be sued for three times the amount, that under Sec. 11 of Chap. 11 for practicing law without a license, it would be no defense for her to say that the masculine pronoun was used in this section.
Section 3 of our Declaration of Rights, says "that all men have a natural and indefeasible right to worship Almighty God," etc. It will not be contended that women are not included within this provision.
The 8th section declares "that no freeman shall be imprisoned or disseized of his freehold," etc., but by the judgment of his peers or the law of the land. Will woman be deprived of the guarantees in this section and the right of trial by jury because the masculine pronoun is used? Under the 11th section no man's property can be taken or applied to public use without the consent, etc. Is not the property of a woman as secure under this provision as that of a man? In the chapter upon forcible entry and detainer, the masculine pronoun is used throughout, but no court would hesitate for a moment in holding a woman to be within its provisions if she should wrongfully hold possession of premises.
In the whole Chancery Code of this State, consisting of 53 sections, the word woman, female, she, her, herself, or any other feminine pronouns are not to be found, while in the 5th, 8th, 15th, 18th, 19th, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 36th, 37th, and 46th, and some others, the masculine pronouns frequently occur. The same construction that would exclude a woman from the provisions of the statute in regard to the admission of attorneys, would place her without the Chancery Code. Yet no respectable attorney would claim because defendants in chancery are represented in the law by masculine pronouns, that a woman could not be made a defendant in chancery.
Myra Bradwell.
All of which is respectfully submitted.
COMMUNICATION FROM THE COURT.
No order having been entered or opinion filed in this case, on the seventh of October the applicant received from the court, through Hon. Norman L. Freeman, Supreme Court Reporter, the following communication:
State of Illinois, Supreme Court, Third Grand }
Division, Clerk's Office, Ottawa, Oct. 6, 1869. }Mrs. Myra Bradwell—Madam: The court instruct me to inform you that they are compelled to deny your application for a license to practice as an attorney-at-law in the courts of this State, upon the ground that you would not be bound by the obligations necessary to be assumed where the relation of attorney and client shall exist, by reason of the disability imposed by your married condition—it being assumed that you are a married woman.
Applications of the same character have occasionally been made by persons under twenty-one years of age, and have always been denied upon the same ground that they are not bound by their contracts, being under a legal disability in that regard.
Until such disability shall be removed by legislation, the court regards itself powerless to grant your application.
N. L. Freeman.
Very respectfully, your obedient servant,
The applicant, satisfied that under the common law, as modified by our statutes, she could not properly be denied a license to practice law solely upon the ground of her married condition, on the 18th of November filed the following printed argument:
ADDITIONAL BRIEF.
In the Supreme Court of Illinois—Third Grand Division—September Term, 1869. [In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law.] And now again comes the said Myra Bradwell, it having been suggested to her that the court had assumed that she is a married woman, and therefore queried whether this would not prevent her from receiving a license, and files this her additional brief.
Your petitioner admits to your honors that she is a married woman (although she believes that fact does not appear in the record), but insists most firmly that under the laws of Illinois it is neither a crime nor a disqualification to be a married woman.
I propose to state very briefly,
1. What is an attorney?
2. Who may act as attorneys?
3. The rights and powers of married women in relation to their business and property under the common law.
4. Their rights and powers as to transacting business under the recent statutes of our State, with reference to their transacting business in their own names and acting as attorneys.
5. The avenues of trade and the professions opened to women by the liberal enactments of the law-makers, and the construction of the courts.
6. How the Legislature has regarded petitioner with reference to her rights to carry on business in her own name and act for herself.
I. What is an Attorney?—An attorney is "one who takes the turn or place of another."—Webster. "An attorney at-law," says Bouvier, "is an officer in a court of justice who is employed by a party in a cause to manage the same for him." All attorneys are agents. They transact business, and appear for, and in the place of their clients who have not the requisite learning, time, or desire to appear in suits for themselves.
Mr. Story, in his work upon "Agency," and Mr. Bouvier, in his "Institutes," in treating of the different kinds of agents, both speak first of attorneys-at-law. All the elementary writers upon law tell us that attorneys are agents. Without reference to our recent statutes modifying the common law, we will open the books and see who may be attorneys or agents.
II. Who may be Attorneys or Agents.—Mr. Story, in his work on Agency, says, sec. 7:
Secondly, who are capable of becoming agents? And here it may be stated that there are few persons who are excluded from acting as agents, or from exercising an authority delegated to them by others. Therefore, it is by no means necessary for a person to be sui juris or capable of acting in his or her own right, in order to qualify himself or herself to act for others. Thus, for example, monks, infants, femes covert, persons attainted, outlawed, or excommunicated villains, and aliens, may be agents for others.... A feme covert may be an attorney of another, to make livery to her husband upon a feoffment; and a husband may take such livery to his wife, although they are generally deemed but one person in law. She may also act as agent or otherwise of her own husband, and as such, with his consent, bind him by her contract, or other act; or she may act as the agent of another, in a contract, with her own husband.
III. Under the Common Law.—In Cox vs. Kitchin, 1 Bos. & Pul., 438, where a feme covert represented herself falsely to the tradesman to be a feme sole, and obtained goods on credit, it was held that she rendered herself personally responsible.
In Derry vs. Mazarine, 1 Ld. Raymond, 147, it was held that the wife of an alien, who was doing business in her own name, in England, was liable as a feme sole. In Hauptman vs. Catlin, 20 N. Y., 248, the Court of Appeals says:
Even before the late statute respecting married women, they were regarded as femes sole in respect to their separate property, and were as to such property liable on their contracts respecting the same, to the same extent and as though they were not under the disability of coverture. It was held by Lord Mansfield and his associates, in Corbett vs. Poelnitz, 1 T. R., 5, that if a husband and wife choose to separate, and the husband allows the wife a separate maintenance, she may contract and be sued as though she were unmarried, and may be held to bail and imprisoned on a ca. sa. without her husband. The court made this innovation on the ground that "the times alter new customs, and new manners arise, which require new exceptions, and a different application of the general rule.
IV. Under the Recent Statutes.—In Conway vs. Smith and Wife, 13 Wis., 125, the court held that "the statute gives to married women, as necessarily incidental to the power of holding property to their own use, the power of making all contracts necessary or convenient to its beneficial enjoyment, and such contracts are to be regarded as valid in law, and may be enforced by legal remedies." Cole, J., dissenting.
In Barton vs. Beer, 35 Barbour, 81, the court, in treating of the liability of a married woman, says:
If she acts as a feme sole, she ought, in justice to the public, to be subjected to all the duties and liabilities of a feme sole.
In Emerson vs. Clayton, 32 Ill., 493, this honorable court held, that a married woman might bring replevin in her own name, for her separate property, against a third party, or even against her own husband, and that the act designed to make and did make a radical and thorough change in the condition of a feme covert; that she is to be regarded as unmarried, so far as her separate property is concerned.
In Pomeroy vs. Manhattan Life Insurance Co., 40 Ill., 398, Walker, C. J., in delivering the opinion of the court, says:
Under the statute she is entitled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers. If it gives the rights of a sole ownership, it must impose the liabilities incident to such an act.
In Brownell vs. Dixon, 39 Ill., 207. this court not only held, under the act of 1861, that a married woman possessed of separate property might employ "an agent to transact her business", but that she might employ her own husband as such agent.
Relying upon the doctrine laid down in this case, we insist that the power "to employ an agent" carries with it the liability to pay such an agent a reasonable compensation for his services; and that if a married woman employs a man to work on her farm for one day, and agrees to give him two dollars therefor, and fails so to do, that a fair construction of the act of 1861 would allow him to sue her before a justice of the peace, and not drive him to the expense of filing a bill in chancery that would amount to more than a denial of justice.
Now, if under the Act of 1861 she can employ an agent to transact her business, we insist under the Act of 1869, giving the wife her own earnings, and the rights to sue for the same in her own name, free from her husband, that she has the right to be employed as an agent, or attorney, or physician, if she is capable, and to agree to do the duties of her profession. It would almost seem that this question is answered by the following extract from the opinion of this honorable court, as delivered by Mr. Justice Lawrence, in Carpenter vs. Mitchell, 2 Legal News, 44:
It may be said that a married woman can not adequately enjoy her separate property unless she can make contracts in regard to it. This is true, and hence her power to make contracts, so far as may be necessary for the use and enjoyment of her property, must be regarded as resulting by implication from the statute. If she owns houses she must be permitted to contract for their repair or rental. If she owns a farm she must be permitted to bargain for its cultivation, and to dispose of its products. We give these as illustrations of the power of contracting which is fairly implied in the law.
It is true, in this opinion the learned Judge confines his remarks strictly to the contracts of the wife made in relation to her separate property, and not in relation to general trade. This case arose before the passage of the Act of 1869. The right of a married woman to bring a suit in her own name is a necessary incident to the law. (Cole vs. Van Riper, 1 Legal News, 41.)
V. The Trades and Professions open to Women.—The doors of many of our universities and law schools are now open to women upon an equality with men. The Government of the United States has employed women in many of its departments, and appointed many, both single and married, to office. Almost every large city in the Union has its regularly-admitted female physicians. The law schools of the nation have now many women in regular attendance, fitting themselves to perform the duties of the profession. The bar itself is not without its women lawyers, both single and married.
Mrs. Arabella A. Mansfield, wife of Prof. J. M. Mansfield, of Mount Pleasant, Iowa, was admitted to the bar of Iowa, upon the unanimous petition of the attorneys of that place, after a very careful examination, not only of the applicant, but of the statutes regulating the admission of attorneys.
The statute of Iowa provides that "any white male person, twenty-one years of age, who is an inhabitant of this State," and who satisfies the court, "that he possesses the requisite learning, and that he is of good moral character, may, by such court, be licensed to practice in all the courts of the State, upon taking the usual oath of office."
The clause construing statutes is as follows:
Words importing the singular number only, may be extended to several persons or things; and words importing the plural number only may be applied to one person, or thing; and words importing the masculine gender only may be extended to females.
In Mrs. Mansfield's case, the court not only held that she could be admitted, notwithstanding the fact that she was a married woman, under the clause of the statute giving a construction to the masculine noun "male," and pronoun "he"; but that the affirmative declaration, that male persons may be admitted, is not an implied denial of the right to females. We know of no instance in the United States, where a woman, whether married or single, who has complied with the statutes of the State in which she lived and applied for admission, that the proper court has refused to grant her license.
VI. How the Legislature have Regarded your Petitioner.—It has been held, in England, that a wife who does business in her own name, with either the express or implied consent of her husband, should be treated as a feme sole, and be sued as such; and, with such consent, could be an administrator, executor, or guardian, in England or America.
The Legislature has, in repeated instances, acknowledged the capability and capacity of your petitioner to transact business, by providing that the Chicago Legal News, edited by her, and containing the decisions rendered by your honors, should be received in evidence in all the courts of this State, and in the following extract from the charter of the Chicago Legal News Company:
And all the real and personal estate of said Myra Bradwell shall be liable for the debts of said company, contracted while she is a stockholder therein, and all stock of said company owned by her, and the earnings thereof, shall be her sole and separate property, the same as if she were an unmarried woman; and she shall have the same right to hold any office or offices in said company, or transact any of its business that a feme sole would have.—Legal News, Edition Laws of 1869, p. 93. Sec. 4, p. 93.
Your petitioner claims that a married woman is not to be classed with an infant since the passage of the Act of 1869. A married woman may sue in her own name for her earnings, an infant can not. A married woman, if an attorney, could be committed for contempt of court the same as any other attorney. If she should collect money and refuse to pay it over, she could be sued for it the same as if she were single. A married woman is liable at law for all torts committed by her, unless done under the real or implied coercion of her husband. Having received a license to practice law as an attorney, and having acted as such, she would be estopped from saying she was not liable as an attorney upon any contract made by her in that capacity.
The fees that a married woman receives for her services as an attorney are just as much her earnings as the dollar that a sewing-woman receives for her day's work, and are just as much protected by the Act of 1869. Is it for the court to say, in advance, that it will not admit a married woman? Should she be admitted, and fail to perform her duty, or to comply with all her contracts as an attorney, could not the court, upon application, strike her name from the roll, or inflict more summary punishment?
Your petitioner has complied with all the provisions of the statutes of the State regulating the admission of attorneys, and asks, as a matter of right and justice, standing as she does upon the law of the land, that she be admitted.
Not a line of written law, or a single decision in our State, can be found disqualifying a married woman from acting as an attorney. This honorable court can send me from its bar, and prevent me from practicing as an attorney, and it is of small consequence; but if, in so doing, your honors say to me: "You can not receive a license to practice as an attorney-at-law in the courts of this State upon the ground that you would not be bound by the obligations necessary to be assumed, where the relation of attorney and client shall exist, by reason of the disability imposed by your married condition"; you, in my judgment, in striking me down, strike a blow at the rights of every married woman in the great State of Illinois who is dependent on her labor for support, and say to her, you can not enter into the smallest contract in relation to your earnings or separate property, that can be enforced against you in a court of law.
This result can, in my opinion, only be reached by disregarding the liberal statutes of our State, passed for the sole purpose of extending the rights of married women, and forever removing from our law, relating to their power to contract in regard to their earnings and property, the fossil foot-prints of the feudal system, and following the strictest rules of the common law.
Lord Mansfield, notwithstanding the fact that slaves had been held, bought and sold for years in the streets of London, declared that the moment a slave touched British soil his shackles fell. The same noble lord held that a married woman might under certain circumstances, contract, and sue, and be sued at law, as a single woman, upon the ground that, the reason of the law ceasing, the law itself must cease; and that, as the usages of society alter, the law must adapt itself to the various situations of mankind. Mr. Justice Buller, in speaking of this decision years afterward, declared that "the points there decided were founded in good sense, and adapted to the transactions, the understanding, and the welfare of mankind."
Apply this reasoning in our State, now that the Legislature has removed every claim that the husband had, under the common law, upon the property of the wife, except his life estate in her hands, which only commences with her death, and all difficulty is removed, and the case is clear.
Myra Bradwell.
Applicant, with a view of placing herself in a position to obtain the benefit of the provisions of the Constitution of the United States, and the Civil Rights Bill, applicable to her case, on the second day of January, 1870, filed the following affidavit and points:
In the Supreme Court of Illinois, Third Grand Division—September Term, 1869. [In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law]—State of Illinois, County of Cook, ss.: Myra Bradwell, being duly sworn, doth depose and say that she was born in Manchester, in the State of Vermont, and that she was a citizen of said State last named, that she is now a citizen of the United States; that she is and has been for many years last past a resident of Chicago, in said State of Illinois, and further deponent says not.
Myra Bradwell.
Subscribed and sworn to before me this 31st day of December, a.d. 1869.
E. B. Payne, Notary Public. [Seal.]
And now again comes the said Myra Bradwell, and files the following additional points:
VII. Your petitioner claims under the XIV. Amendment to the Constitution of the United States, and the act commonly known as the "Civil Rights Bill," the "full and equal benefit of all laws and proceedings for the security of person and property," and the right to exercise and follow the profession of an attorney-at-law upon the same terms, conditions, and restrictions as are applied to and imposed upon every other citizen of the State of Illinois, and none other.
And that having complied with all the laws of the State, and the rules and regulations of this honorable court, for the admission of attorneys, it is contrary to the true intent and meaning of said Amendment and said "Civil Rights Bill," for your petitioner to be refused a license to practice law, upon the sole ground of her "married condition."
VIII. And your petitioner further claims, that having been born in the State of Vermont, and having been a citizen of the State last named, and of the United States, and having removed to the State of Illinois, where she has resided for many years, that under the second section of the IV. Article of the Constitution of the United States, which is in these words, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," she has guaranteed to her the privileges and immunities which every other citizen of the State of Illinois has, among which may be named the protection of the Government, the right to the enjoyment of life and liberty, to acquire and possess property, to reside in the State, to carry on trade, and the right to follow any professional pursuit under the laws of the State, which must work equally upon all the citizens of the State, and that under this section of the Constitution she has a right to receive a license to practice law upon the same terms and conditions as the most favored citizen of the State of Illinois.
(People vs. Washington, 36 California R., 662. Corfield vs. Coryell, 4 Washington C. R., 381.)
Myra Bradwell.
On last week the court filed an opinion denying the application, for a very carefully prepared copy of which we are indebted to Mr. Freeman:
OPINION OF THE COURT DENYING THE APPLICATION.
[In the matter of the application of Mrs. Myra Bradwell for a license to practice as an Attorney-at-Law.] Opinion of the Court Delivered by Mr. Justice Lawrence.—At the last term of the court 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 ample 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.
The applicant, in her printed argument, combats the decision of the court in the case of Carpenter vs. Mitchell, June term, 1869, in which we held a married woman was not bound by contracts having no relation to her own property. We are not inclined to go over again the grounds of that decision. It was the result of a good deal of deliberation and discussion in our council chamber, and the confidence of the present members of this court in its correctness can not easily be shaken. We are in accord with all the courts in this country which have had occasion to pass upon a similar question, the Supreme Court of Wisconsin in Conway vs. Smith, 13 Wis., 125, differing from us only on the minor point as to whether, in regard to contracts concerning the separate property of married women, the law side of the court would take jurisdiction.
As to the main question, the right of married women to make contracts not affecting their separate property, the position of those who assert such right is, that because the Legislature has expressly removed the common law disabilities of married women in regard to holding property not derived from their husbands, it has therefore, by necessary implication, also removed all their common law disabilities in regard to making contracts, and invited them to enter, equally with men, upon those fields of trade and speculation by which property is acquired through the agency of contracts.
The hiatus between the premise and the conclusion is too wide for us to bridge. It may be desirable that the Legislature should relieve married women from all their common law disabilities. But to say that it has done so in the Act of 1861, the language of which is carefully guarded, and which makes no allusion to contracts, and does not use that or any equivalent term, would be simple misinterpretation. It would be going as far beyond the meaning of that act as that act goes beyond the common law in changing the legal status of women. The act itself is wise and just, and therefore entitled to a liberal interpretation.
This we have endeavored to give it in the cases that have come before us, but we do not intend to decide that the Legislature has gone to a length in its measure of reform for which the language it has carefully used furnishes no warrant.
It is urged, however, that the law of the last session of the Legislature, which gives to married women the separate control of their earnings, must be construed as giving to them the right to contract in regard to their personal services. This act had no application to the case of Carpenter vs. Mitchell, having been passed after that suit was commenced, and we were unmindful of it when considering this application at the last term. Neither do we now propose to consider how far it extends the power of a married woman to contract, since, after further consultation in regard to this application, we find ourselves constrained to hold that the sex of the applicant, independently of coverture; is, as our law now stands, a sufficient reason for not granting this license.
Although an attorney-at-law is an agent, as claimed by the applicant's argument, when he has been retained to act for another, yet he is also much more than an agent. He is an officer of the court, holding his commission in this State, from two of the members of this court, and subject to be disbarred by this court for what our statute calls "mal-conduct in his office." He is appointed to assist in the administration of justice, is required to take an oath of office, and is privileged from arrest while attending courts.
Our statute provides that no person shall be permitted to practice as an attorney or counselor-at-law, without having previously obtained a license for that purpose from two of the justices of the Supreme Court. By the second section of the act, it is provided that no person shall be entitled to receive a license until he shall have obtained a certificate, from the court of some county, of his good moral character, and this is the only express limitation upon the exercise of the power thus intrusted to this court. In all other respects it is left to our discretion to establish the rules by which admission to this office shall be determined. But this discretion is not an arbitrary one, and must be held subject to at least two limitations. One is, that the court should establish such terms of admission as will promote the proper administration of justice; the second, that it should not admit any persons or class of persons who are not intended by the Legislature to be admitted, even though their exclusion is not expressly required by the statute.
The substance of the last limitation is simply that this important trust reposed in us should be exercised in conformity with the designs of the power creating it.
Whether, in the existing social relations between men and women, it would promote the proper administration of justice, and the general well-being of society, to permit women to engage in the trial of cases at the bar, is a question opening a wide field of discussion upon which it is not necessary for us to enter. It is sufficient to say that, in our opinion, the other implied limitation upon our power, to which we have above referred, must operate to prevent our admitting women to the office of attorney-at-law. If we were to admit them, we should be exercising the authority conferred upon us in a manner which, we are fully satisfied, was never contemplated by the Legislature.
Upon this question it seems to us neither this applicant herself, nor any unprejudiced and intelligent person, can entertain the slightest doubt. It is to be remembered that at the time this statute was enacted 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 to be also 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, and we are by no means certain it was not, 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.
In view of these facts, we are certainly warranted in saying, that when the Legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended equally to men and women.
Neither has there been any legislation since that period which would justify us in presuming a change in the legislative intent. Our laws to-day in regard to women, are substantially what they have always been, except in the change wrought by the acts of 1861 and 1869, giving to married women the right to control their own property and earnings.
Whatever, then, may be our individual opinions as to the admission of women to the bar, we do not deem ourselves at liberty to exercise our power in a mode never contemplated by the Legislature, and inconsistent with the usages of courts of the common law from the origin of the system to the present day.
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 yet prepared to hold.
In our opinion, it is not the province of a court to attempt, by giving a new interpretation to an ancient statute, to introduce so important a change in the legal position of one-half the people. Courts of justice were not intended to be made the instruments of pushing forward measures of popular reform. If it be desirable that those offices which we have borrowed from the English law, and which from their origin some centuries ago down to the present time, have been filled exclusively by men, should also be made accessible to women, then let the change be made, but let it be made by that department of the Government to whom the Constitution has intrusted the power of changing the laws. The great body of our law rests merely upon ancient usage. The right of a husband in this State to the personal property of his wife, before the act of 1861, rested simply upon such usage, yet who could have justified this court if, prior to the passage of that act, it had solemnly decided that it was unreasonable that the property of the wife should vest in the husband, and this usage should no longer be recognized? Yet was it not as unreasonable that a woman by marriage should lose the title of her personal property, as it is that she should not receive from us a license to practice law? The rule in both cases, until the law of 1861, rested upon the same common law usage and could have pleaded the same antiquity. In the one case it was never pretended that this court could properly overturn the rule, and we do not see how we could be justified should we disregard it in the other. The principle can not be too strictly and conscientiously observed, that each of the three departments of the Government should avoid encroachment upon the other, and that it does not belong to the judiciary to attempt to inaugurate great social or political reforms. The mere fact that women have never been licensed as attorneys-at-law is, in a tribunal where immemorial usage is as much respected as it is and ought to be in courts of justice, a sufficient reason for declining to exercise our discretion in their favor, until the propriety of their participating in the offices of State and the administration of public affairs shall have been recognized by the law-making department of the Government—that department to which the initiative in great measures of reform properly belongs. For us to attempt, in a matter of this importance, to inaugurate a practice at variance with all the precedents of the law we are sworn to administer, would be an act of judicial usurpation deserving of the gravest censure. If we could disregard, in this matter, the authority of those unwritten usages which make the great body of our law, we might do so in any other, and the dearest rights of person and property would become a matter of mere judicial discretion.
But it is said the 28th section of chapter 90 of the Revised Statutes of 1845 provides that, whenever any person is referred to in the statute by words importing the masculine gender, females as well as males shall be deemed to be included. But the 36th section of the same chapter provides that this rule of construction shall not apply where there is anything in the subject or context repugnant to such construction. That is the case in the present instance.
In the view we have taken of this question the argument drawn by the applicant from the Constitution of the United States has no pertinency.
In conclusion we would add that, while we are constrained to refuse this application, we respect the motive which prompts it, and we entertain a profound sympathy with those efforts which are being so widely made to reasonably enlarge the field for the exercise of woman's industry and talent. While those theories which are popularly known as "woman's rights" can not be expected to meet with a very cordial acceptance among the members of a profession which, more than any other, inclines its followers, if not to stand immovable upon the ancient ways, at least to make no hot haste in measures of reform, still all right-minded men must gladly see new spheres of action opened to woman, and greater inducements offered her to seek the highest and widest culture. There are some departments of the legal profession in which she 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.
If the Legislature shall choose to remove the existing barriers and authorize us to issue licenses equally to men and women, we shall cheerfully obey, trusting to the good sense and sound judgment of women themselves to seek those departments of the practice in which they can labor without reasonable objection.
Application denied.
The opinion will be best understood by reading our arguments first, and knowing all the points made before the court. We have not the space to review the opinion in this issue, but shall do so at some future day, and will simply say now, that what the decision of the Supreme Court of the United States in the Dred Scott case was to the rights of negroes as citizens of the United States, this decision is to the political rights of women in Illinois—annihilation.
CAN A WOMAN PRACTICE LAW OR HOLD ANY OFFICE IN ILLINOIS?
Full Report of the Proceedings in the Supreme Court of Illinois and the Supreme Court of the United States, upon the application of Myra Bradwell to be admitted to the Bar.
On pp. 145, 146, and 147 of this volume, we gave the proceedings in full in the Supreme Court of this State upon our application to be admitted to practice law, including the opinion of Judge Lawrence, the present learned Chief-Justice of that tribunal, denying the application on the sole ground that a woman could not be admitted to the bar or hold any office in Illinois. As soon after this opinion was announced as we could obtain a certified copy of the record, we placed it in the hands of the Hon. Matt. H. Carpenter, one of the ablest constitutional lawyers in the nation, with a view of obtaining a writ of error from the Supreme Court of the United States. Mr. Carpenter prepared and presented our petition for a writ of error, together with the record. The following is the indorsement upon the record, allowing the writ of error from the Supreme Court of the United States:
I allow a writ of error from the Supreme Court of the United States to the Supreme Court of Illinois, in the suit and judgment of which the foregoing record is a transcript.
Sam. F. Miller, Asso. Jus. Sup. Court U. S.
August 16, 1870.
CITATION TO THE STATE OF ILLINOIS TO APPEAR AT WASHINGTON.
The United States of America to the State of Illinois:—The State of Illinois is hereby cited and admonished to appear and be at the Supreme Court of the United States to be holden at Washington City in the District of Columbia, on the first Monday of December next, pursuant to a writ of error filed in the clerk's office of the Supreme Court of the State of Illinois, wherein Myra Bradwell is plaintiff in error, and the State of Illinois is defendant in error, to show cause, if any there be, why the judgment in the said writ of error mentioned should not be corrected, and speedy justice should not be done to the parties in that behalf.
Witness the Honorable Salmon P. Chase, Chief-Justice of the Supreme Court of the United States this 16th day of August, a.d. 1870.
Sam. F. Miller, Asso. Jus. Sup. Court U. S.
WRIT OF ERROR.
United States of America, ss.:
[Seal.]
The President of the United States, To the Honorable the Judges of the Supreme Court of the State of Illinois—Greeting:
Because, in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said Supreme Court of the State of Illinois, before you, or some of you, being the highest court of law or equity of the said State in which a decision could be had in the said suit in the matter of the application of Myra Bradwell, of Cook County, Illinois for a license to practice law in the courts of said State, wherein was drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision was against their validity; or wherein was drawn in question the validity of a statute of, or an authority exercised under, said State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of such their validity; or wherein was drawn in question the construction of a clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision was against the title, right, privilege, or exemption, specially set up or claimed under such clause of the said Constitution, treaty, statute, or commission, a manifest error hath happened, to the great damage of the said Myra Bradwell, as by her complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington on the first Monday of December next, in the said Supreme Court, to be then and there held, that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error what of right, and according to the laws and custom of the United States, should be done.
Witness the Honorable Salmon P. Chase, Chief-Justice of the said Supreme Court, the first Monday of December, in the year of our Lord one thousand eight hundred and sixty-nine.
D. W. Middleton, Clerk of the Supreme Court of the U. S.
Issued 23d August, 1870.
Allowed by me,
Sam. F. Miller, Asso. Jus. Sup. Court, U. S.
Ordered, That rules 69 and 70 be rescinded, and applicants for license to practice law in the courts of this State, on presenting to any member of this court a certificate of qualification, signed by the Circuit Judge and State's Attorney of the circuit in which the applicant may reside, setting forth that the applicant has been examined and found qualified, will be a sufficient voucher on which to grant a license.