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.
While these suits for the recognition of the political rights of women were pending, a contest of a different character took place in Illinois. Mrs. Myra Bradwell, editor of the Chicago Legal News, applied for admission to the bar of that State, and was refused. She made this denial of her civil rights a test case by bringing suit against the State of Illinois in the Supreme Court of the United States. The case was argued for the plaintiff in the December term, 1871, by the Hon. Matt. H. Carpenter, of Wisconsin, an eminent republican United States Senator. In addressing the Court Mr. Carpenter said:
This is a writ of error to the Supreme Court of the State of Illinois, to review the proceedings of that court, denying the petition of the plaintiff in error to be admitted to practice as an attorney and counselor of that court, which right was claimed by the plaintiff in error in that court under the XIV. Amendment of the Constitution of the United States. The plaintiff in error is a married woman, of full age, a citizen of the United States and of the State of Illinois; was ascertained and certified to be duly qualified in respect of character and attainments, but was denied admission to the bar for the sole reason that she was a married woman. This is the error relied upon to reverse the proceedings below.
By the rules of this court no person can be admitted to practice at the bar without service for a fixed term in the highest court of the State in which such person resides. Consequently a denial of admission in the highest court of the State is an insurmountable obstacle to admission to the bar of this court. This record, therefore, presents the broad question, whether a married woman, being a citizen of the United States and of a State, and possessing the necessary qualifications, is entitled by the Constitution of the United States to be admitted to practice as an attorney and counselor-at-law in the courts of the State in which she resides. This is a question not of taste, propriety, or politeness, but of civil right. Before proceeding to discuss this question, it may be well to distinguish it from the question of the right of female citizens to participate in the exercise of the elective franchise.
The great problem of female suffrage, the solution of which lies in our immediate future, naturally enough, from its transcendent importance, draws to itself, in prejudiced minds, every question relating to the civil rights of women; and it seems to be feared that doing justice to woman's rights in any particular would probably be followed by the establishment of the right of female suffrage, which, it is assumed, would overthrow Christianity, defeat the ends of modern civilization, and upturn the world.
While I do not believe that female suffrage has been secured by the existing amendments to the Constitution of the United States, neither do I look upon that result as at all to be dreaded. It is not, in my opinion, a question of woman's rights merely, but, in a far greater degree, a question of man's rights. When God created man, he announced the law of his being, that it was not well for him to be alone, and so He created woman to be his helpmate and companion. Commencing with the barbarism of the East, and journeying through the nations toward the bright light of civilization in the West, it will everywhere be found that, just in proportion to the equality of women with men in the enjoyment of social and civil rights and privileges, both sexes are proportionately advanced in refinement and all that ennobles human nature. In our own country, where women are received on an equality with men, we find good order and good manners prevailing. Because women frequent railroad cars and steamboats, markets, shops, and post-offices, those places must be, and are, conducted with order and decency. The only great resorts from which woman is excluded by law are the election places; and the violence, rowdyism, profanity, and obscenity of the gathering there in our largest cities are sufficient to drive decent men, even, away from the polls. If our wives, sisters, and daughters were going to the polls, we should go with them, and good order would be observed, or a row would follow, which would secure order in the future. I have more faith in female suffrage, to reform the abuses of our election system in the large cities, than I have in the penal election laws to be enforced by soldiers and marines. Who believes that, if ladies were admitted to seats in Congress, or upon the bench, or were participating in discussions at the bar, such proceedings would thereby be rendered less refined, or that less regard would be paid to the rights of all?
But whether women should be admitted to the right of suffrage, is one thing; whether this end has already been accomplished, is quite another. The XIV. Amendment forbids the States to make or enforce any law which shall abridge "the privileges or immunities" of a citizen. But whether the right to vote is covered by the phrase "privileges and immunities," was much discussed under the provisions of the old Constitution; and at least one of the earliest decisions drew a distinction between "privileges and immunities" and political rights. On the other hand, Mr. Justice Washington, in a celebrated case, expressed the opinion, that the right to vote and hold office was included in this phrase. But in neither of the cases was this point directly involved, and both opinions are obiter dicta in relation to it.
But the XIV. and XV. Amendments seem to settle this question against the right of female suffrage. These amendments seem to recognize the distinction at first pointed out between "privileges and immunities," and the right to vote. The XIV. Amendment declares,
All persons born and naturalized in the United States, etc., are citizens of the United States, and of the State wherein they reside.
Of course, women, as well as men, are included in this provision, and recognized as citizens. This Amendment further declares:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
If the privileges and immunities of a citizen can not be abridged, then, of course, the privileges and immunities of all citizens must be the same. The second section of this Amendment provides that
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians, not taxed. But when the right to vote at any election, etc., is denied to any of the male inhabitants, being twenty-one years of age, etc., the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
It can not be denied, that the right or power of a State to exclude a portion of its male citizens from the right to vote, is recognized by this second section; from which it follows, that the right to vote is not one of the "privileges or immunities" which the first section declares shall not be abridged by any State. The right of female suffrage is also inferentially denied by that provision of the second section, above quoted, which provides that when a State shall deny the right to vote to any male citizen,
The basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens in such State.
In the first place, it is to be observed that the basis of representation in a State, which is the whole number of persons—male and female, adults and infants—is only to be reduced when the State shall exclude a portion "of the male inhabitants of such State." The exclusion of female inhabitants, and infants under the age of twenty-one years, does not effect a reduction of the basis of representation in such State. And, again, when a State does exclude a portion of its male inhabitants, etc., the basis of representation in such State is not reduced in the proportion which the number of such excluded males bears to the number of persons—male and female—in such State; but only
In the proportion which the number of such (excluded) male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
This provision assumes that females are no part of the voting population of a State. The XV. Amendment is equally decisive. It recognizes the right—that is, power—of any State to exclude a portion of its citizens from the right to vote, and only narrows this right in favor of a particular class. Its language is:
The right of citizens of the United States to vote shall not be denied or abridged, etc., on account of race, color, or previous condition of servitude.
This amendment was wholly unnecessary upon the theory that the XIV. Amendment had established or recognized the right of every citizen to vote. It recognizes the right of a State to exclude a portion of its citizens, and only restrains that power so far as to provide that citizens shall not be excluded on account of race, color, or previous condition of servitude. In every other case, the power of exclusion recognized by the XIV. Amendment is untouched by the XV. It is also worthy of notice that, throughout the XIV. and XV. Amendments, voting is not treated as, or denominated a privilege, and evidently was not intended to be, nor regarded as included in the "privileges or immunities" of a citizen, which no State can abridge for any cause whatever. I have taken this pains to distinguish between the "privileges and immunities" of a citizen, and the "right" of a citizen to vote, not because I feared that this court would deny one, even if the other would follow, but to quiet the fears of the timid and conservative.
I come now to the narrower and precise question before the court: Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the XIV. Amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court? It was provided by the original Constitution:
The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
Under this provision each State could determine for itself what the privileges and immunities of its citizens should be. A citizen emigrating from one State to another carried with him, not the privileges and immunities he enjoyed in his native State, but was entitled, in the State of his adoption, to such privileges and immunities as were enjoyed by the class of citizens to which he belonged by the laws of such adopted State. A white citizen of one State, where no property qualification for voting was required, emigrating to a State which required such qualification, must conform to it before he could claim the right to vote. A colored citizen, authorized to hold property in Massachusetts, emigrating to South Carolina, where all colored persons were excluded from such right, derived no aid, in this respect, from the Constitution of the United States, but was compelled to submit to all the incapacities laid by the laws of that State upon free persons of color born and residing therein. A married woman, a citizen of the State of Wisconsin, where by law she was capable of holding separate estate, and making contracts concerning the same, emigrating to a State where the common law in this regard prevailed, could not buy and sell property in her own name, or contract in reference thereto.
But the XIV. Amendment executes itself in every State of the Union. Whatever are the privileges and immunities of a citizen in the State of New York, such citizen, emigrating, carries them with him into any other State of the Union. It utters the will of the United States in every State, and silences every State constitution, usage, or law which conflicts with it. If to be admitted to the bar, on attaining the age and learning required by law, be one of the privileges of a white citizen in the State of New York, it is equally the privilege of a colored citizen in that State; and if in that State, then in any State. If no State may "make or enforce any law" to abridge the privileges of a citizen, it must follow that the privileges of all citizens are the same. We have already seen that the right to vote is not one of those privileges which are declared to be common to all citizens, and which no State may abridge; but that it is a political right, which any State may deny to a citizen, except on account of race, color, or previous condition of servitude. It therefore only remains to determine whether admission to the bar belongs to that class of privileges which a State may not abridge, or that class of political rights as to which a State may discriminate between its citizens.
In discussing this subject, we are compelled to use the words "privileges and immunities" and the word "rights" in the precise sense in which they are employed in the Constitution. In popular language, and even in the general treatises of law writers, the words "rights" and "privileges" are used synonymously. Those privileges which are secured to a man by the law are his rights; and the great charter of England declares that the ancient privileges enjoyed by Englishmen, are the undoubted rights of Englishmen. But, as we have seen, the XIV. and XV. Amendments distinguish between privileges and rights; and it must be confessed that it is paradoxical to say, as the XIV. Amendment clearly does, that the "privileges" of a citizen shall not be abridged, while his "right" to vote may be. But a judicial construction of the Constitution is wholly different from a mere exercise in philology. The question is not whether certain words were aptly employed—but the context must be searched to ascertain the sense in which such words were used.
It is evident that there are certain "privileges and immunities" which belong to a citizen of the United States as such; otherwise it would be nonsense for the XIV. Amendment to prohibit a State from abridging them; and it is equally evident from the XIV. Amendment that the right to vote is not one of those privileges. And the question recurs whether admission to the bar, the proper qualification being possessed, is one of the privileges which a State may not deny. In Cummings vs. Missouri, 4 Wall., 321, this court say:
In France, deprivation or suspension of civil rights, or some of them—and among these of the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning—are punishments prescribed by her code. The theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or extension of any of these rights for past conduct is punishment, and can be in no otherwise defined.
No broader or better enumeration of the privileges which pertain to American citizenship could be given. "Life, liberty, and the pursuit of happiness; and, in the pursuit of happiness, all avocations, all honors, all positions, are alike open to every one; and in the protection of these rights all are equal before the law." In ex parte Garland (4 Wall., 378) this court say:
The profession of an attorney and counselor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. Attorneys and counselors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character.... The order of admission is the judgment of the court, that the parties possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunity to be heard has been offered. (Ex parte Heyfron, 7 How., Miss., 127; Fletcher vs. Daingerfield, 20 Cal., 430.) Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases.... The attorney and counselor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the Legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency. The Legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of the ordinary avocations of life.
It is now well settled that the courts, in admitting attorneys to, and in expelling them from, the bar, act judicially, and that such proceedings are subject to review on writ of error or appeal, as the case may be. (Ex parte Cooper, 22 N. Y., 67. Strother vs. Missouri, 1 Mo., 605. Ex parte Secomb, 19 How., 9. Ex parte Garland, 4 Wall., 378.)
From these cases the conclusion is irresistible, that the profession of the law, like the clerical profession and that of medicine, is an avocation open to every citizen of the United States. And while the Legislature may prescribe qualifications for entering upon this pursuit, they can not, under the guise of fixing qualifications, exclude a class of citizens from admission to the bar. The Legislature may say at what age candidates shall be admitted; may elevate or depress the standard of learning required. But a qualification, to which a whole class of citizens never can attain, is not a regulation of admission to the bar, but is, as to such citizens, a prohibition. For instance, a State Legislature could not, in enumerating the qualifications, require the candidate to be a white citizen. This would be the exclusion of all colored citizens, without regard to age, character, or learning. Such an act would abridge the rights of all colored citizens, by denying them admission into one of the avocations which this court has declared is alike open to every one. I presume it will be admitted that such an act would be void. I am certain this court would declare it void. And I challenge the most astute mind to draw any distinction between such an act and a custom, usage, or law of a State, which denies this privilege to all female citizens without regard to age, character, or learning. If the Legislature may, under pretense of fixing qualifications, declare that no female citizen shall be permitted to practice law, they may as well declare that no colored citizen shall practice law. It should be borne in mind that the only provision in the Constitution of the United States which secures to colored male citizens the privilege of admission to the bar, or the pursuit of the other ordinary avocations of life, is that provision that
No State shall make or enforce any law which shall abridge the privileges or immunities of a citizen.
If this provision does not open all the professions, all the avocations, all the methods by which a man may pursue happiness, to the colored as well as the white man, then the Legislatures of the States may exclude colored men from all the honorable pursuits of life, and compel them to support their existence in a condition of servitude. And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female. Why may a colored citizen buy, hold, and sell land in any State of the Union? Because he is a citizen of the United States, and that is one of the privileges of a citizen. Why may a colored citizen be admitted to the bar? Because he is a citizen, and that is one of the avocations open to every citizen; and no State can abridge his right to pursue it. Certainly no other reason can be given.
Now, let us come to the case of Myra Bradwell. She is a citizen of the United States, and of the State of Illinois, residing therein; she has been judicially ascertained to be of full age, and to possess the requisite character and learning. Indeed, the court below, in their opinion, found in the record, page 9, say: "Of the ample qualifications of the applicant we have no doubt." Still, admission to the bar was denied the petitioner, not upon the ground that she was not a citizen; not for want of age or qualifications; not because the profession of the law is not one of those avocations which are open to every American citizen as matter of right, upon complying with the reasonable regulations prescribed by the Legislature: but upon the sole ground that inconvenience would result from permitting her to enjoy her legal rights in this, to wit, that her clients might have difficulty in enforcing the contracts they might make with her, as their attorney, because of her being a married woman.
Now, with entire respect to that court, it is submitted that this argument ab inconvenienti, which might have been urged with whatever force belongs to it, against adopting the XIV. Amendment in the full scope of its language, is utterly futile to resist its full and proper operation, now that it has been adopted. Concede, for argument, that the XIV. Amendment ought to have read thus:
No State shall make or enforce any law which shall abridge the privileges or immunities of any citizens except married women;
yet that exception is not found in the sweeping provision of this amendment. It is provided that citizens may be disfranchised for treason; but it is nowhere provided that a citizen shall be disfranchised for being a married woman. The opinion of the court below puts a limitation upon this unlimited constitutional provision. If this court shall approve this exception, in the very teeth of the unambiguous language of the Constitution, where may we expect judicial legislation to stop? Can this court say that married women have no rights that are to be respected? Can this court say that, when the XIV. Amendment speaks of all persons, etc., and declares them to be citizens, it means all male persons and unmarried females? Or can this court say that, when the XIV. Amendment declares "the privileges of no citizen shall be abridged," it means that the privileges of no male citizen or unmarried female citizen shall be abridged? This would be bold dealing with the constitutional provision. It would be excluding a large proportion of the citizens of the United States from privileges which the Constitution declares shall be the inheritance of every citizen alike.
But it is respectfully submitted that the court below erred in holding that a married woman, admitted to the bar under the XIV. Amendment, would not be liable on contracts, express or implied, between her and her clients. In Wisconsin, when the Legislature passed the act protecting married women in the enjoyment of their separate estate, our court, upon reasoning that can not be gainsaid, held that the Legislature must have intended all the natural and logical results of the act in question; and, therefore, that the contracts of a married woman, relating to her separate estate, were as binding as if made by a feme sole. It is submitted that, for still stronger reasons, the great innovation of the XIV. Amendment should be carried to its logical conclusion, and that it sweeps away the principles of the common law, as it does the express provisions of State constitutions and statutes.
But again: Mrs. Bradwell, admitted to the bar, becomes an officer of the court, subject to its summary jurisdiction. Any malpractice or unprofessional conduct towards her client would be punishable by fine, imprisonment, or expulsion from the bar, or by all three. Her clients would, therefore, not be compelled to resort to actions at law against her. But if the courts of Illinois should refuse to exercise this summary jurisdiction, and should hold that actions at law could not be maintained on contracts between her and her clients, it might result that she would not be as generally employed as she otherwise would be. But that is no reason why she should be prohibited from appearing and trying causes for clients who are willing to rely upon her integrity and honor.
But let it not be supposed that, in trying to answer as to the inconveniences imagined by the court below, I am at all departing from the broad ground of constitutional right upon which I rest this cause. I maintain that the XIV. Amendment opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life; and that no citizen can be excluded from any one of them. Intelligence, integrity, and honor are the only qualifications that can be prescribed as conditions precedent to an entry upon any honorable pursuit or profitable avocation, and all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters. The inequalities of sex will undoubtedly have their influence, and be considered by every client desiring to employ counsel.
There may be cases in which a client's rights can only be rescued by an exercise of the rough qualities possessed by men. There are many cases in which the telling sympathy and the silver voice of woman would accomplish more than the severity and sternness of man could achieve. Of a bar composed of men and women of equal integrity and learning, women might be more or less frequently retained, as the taste or judgment of clients might dictate. But the broad shield of the Constitution is over them all, and protects each in that measure of success which his or her individual merits may secure.
Supreme Court of the United States. December Term, 1872. Myra Bradwell, Plaintiff in Error, vs. the State of Illinois. In error to the Supreme Court of the State of Illinois.
1. The Supreme Court of Illinois having refused to grant to plaintiff a license to practice law in the courts of that State, on the ground that females are not eligible under the laws of that State, such a decision violates no provision of the Federal Constitution.
2. The second section of the fourth article is inapplicable, because plaintiff is a citizen of the State of whose action she complains, and that section only guarantees privileges and immunities to citizens of other States, in that State.
3. Nor is the right to practice law in the State courts a privilege or immunity of a citizen of the United States, within the meaning of the first section of the XIV. Article of Amendment of the Constitution of the United States.
4. The power of a State to prescribe the qualifications for admission to the bar of its own courts is unaffected by the XIV. Amendment, and this court can not inquire into the reasonableness or propriety of the rules it may prescribe.
Mr. Justice Miller delivered the opinion of the Court.
The plaintiff in error, residing in the State of Illinois, made application to the judges of the Supreme Court of that State for a license to practice law. She accompanied her petition with the usual certificate from an inferior court of her good character, and that on due examination she had been found to possess the requisite qualifications. Pending this application she also filed an affidavit, to the effect "that she was born in the State of Vermont; that she was (had been) a citizen of that State; that she is now a citizen of the United States, and has been for many years past a resident of the city of Chicago, in the State of Illinois." And with this affidavit she also filed a paper claiming that, under the foregoing facts, she was entitled to the license prayed for by virtue of the second section of the fourth article of the Constitution of the United States, and of the XIV. Article of Amendment of that instrument.
The statute of Illinois on this subject enacts that 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.
The Supreme Court denied the application, apparently upon the ground that it was a woman who made it. The record is not very perfect, but it may be fairly taken that the plaintiff asserted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any right granted to citizens of the latter State. The court having overruled these claims of right, founded on the clauses of the Federal Constitution before referred, those propositions may be considered as properly before this court.
As regards the provision of the Constitution that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable. The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State whose laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Constitution gave her no protection against its courts or its legislation. The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont. While she remained in Vermont that circumstance made her a citizen of that State. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the State of Illinois.
The XIV. Amendment declares that citizens of the United States are citizens of the State within which they reside; therefore plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois. We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the XIV. Amendment.
In regard to that amendment counsel for plaintiff in this court truly says that there are certain privileges and immunities which belong to a citizen of the United States as such; otherwise it would be nonsense for the XIV. Amendment to prohibit a State from abridging them, and he proceeds to argue that admission to the bar of a State of a person who possesses the requisite learning and character is one of those which a State may not deny. In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these, and these alone, which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them. The right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal Courts, who were not citizens of the United States or of any State. But, on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State, and as to Federal Courts, it would relate to citizenship of the United States.
The opinion just delivered in the Slaughter-house Cases from Louisiana renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal Government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license. It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case.
The judgment of the State court is, therefore, affirmed.
D. W. Middleton, C. S. C. U. S.
Mr. Justice Bradley gave the following: I concur in the judgment of the court in this case by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read.
The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counselor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of laws of Illinois, only men were admitted to the bar, and the Legislature had not made any change in this respect, but had simply provided no person should be admitted to practice as attorney or counselor without having previously obtained a license for that purpose from two justices of the Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the Legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the Legislature had intended to adopt any different rule.
The claim that, under the XIV. Amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life.
It certainly can not be affirmed, as a historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. 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 womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.
It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and can not be based upon exceptional cases.
The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the Legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.
For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.
I concur in the opinion of Mr. Justice Bradley.
Field, J.
D. W. Middleton, C. S. C. U. S.
All persons born and naturalized in the United States, etc., are citizens of the United States, and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians, not taxed. But when the right to vote at any election, etc., is denied to any of the male inhabitants, being twenty-one years of age, etc., the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
The basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens in such State.
In the proportion which the number of such (excluded) male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
The right of citizens of the United States to vote shall not be denied or abridged, etc., on account of race, color, or previous condition of servitude.
The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.