Much the stronger writers and speakers have been found on the right side of this question. The names of leading speakers, such as William Lloyd Garrison, Wendell Phillips and Theodore Parker, have already been mentioned. Perhaps the most suggestive articles in favor of the reform were T. W. Higginson's "Ought Women to Learn the Alphabet," published in the Atlantic Monthly of February, 1859, and Samuel Bowles' "The Woman Question and Sex in Politics," published at a later date in the Springfield Republican. "Warrington," in his letters to the same newspaper, from 1868 to 1876, never failed to present a good and favorable argument on some phase of the woman question. Caroline Healey Dall's lectures before 1860, and her book "The College, the Market and the Court," published in 1868, were seed-grain sown in the field of this reform. Samuel E. Sewall's able digest of the laws relating to the legal condition of married women, and William I. Bowditch's admirable pamphlets,[154] have done incalculable service.
Of women in the civil service, there are: 58 clerks, 266 employés and 387 officials—total, 411. This includes postmasters and clerks in bureaus. In 1880, General F. A. Walker, superintendent of the census, instructed the supervisors of the several districts to appoint women as enumerators when practicable. They were accordingly so appointed in many parts of the United States. Carroll D. Wright, supervisor of the district of Massachusetts was in favor of General Walker's instructions, and out of the 903 enumerators appointed by him, thirty were women. This was an exceedingly large proportion compared with the number appointed in States where supervisors were not in favor of women enumerators.
Thanks to the efforts of Caroline Healey Dall, the American Social Science Association, formed in 1865, put women on its board of officers, as did the Boston Social Science Association, organized the same year. These were the first large organizations in the country to admit women on an absolute equality with men. The result of this action vindicated at once and forever woman's fitness to occupy positions of honor in associations that man had hitherto claimed for himself alone. This has encouraged women to express themselves in the presence of the wisest men, and enabled them to present to the public the woman side of some great questions. Women are officers as well as members of many societies originally established exclusively for men. A national society for political education, formed in 1880, of which women are members, has at least one woman on its board of officers. What would have been thought thirty years ago, if women had studied finance, banks and banking, money, currency, sociology and political science?
The Summer School of Philosophy at Concord was founded in 1879.[155] A majority of the students are women, as was not the case in the elder schools of philosophy, and they come from far and near to spend a few weeks of their summer vacation in the enjoyment of this halcyon season of rest. Day after day they sit patiently on the æsthetic benches of the Hillside chapel and bask in the calm light of mild philosophy. Its seed was sown forty years ago, in what was called the Transcendental movement in New England. The Concord school finds in Mr. Sanborn its executive spirit, without which it could no more have come into existence at this time than its first seed could have been planted forty years ago, without the conceptive thought of Mr. Emerson, Mr. Alcott and Margaret Fuller.
Boston University long ago offered the advantages of its law-school to women, but they do not much avail themselves of this privilege. Lelia J. Robinson, in March, 1881, made her application for admission to the bar. In presenting her claim before the court, April 23, Mr. Charles R. Train admitted that it was a novel one; but in a very effective manner he went on to state the cogent reasons why a woman who had carefully prepared herself for the profession of the law should be permitted to practice in the courts. At the close, Chief-Justice Gray gave the opinion, informally, that the laws, as they now exist, preclude woman from being attorney-at-law; but he reserved the matter for the consideration of the full bench. The Supreme Judicial Court rendered an adverse decision. Petitions were then sent to the legislature of 1882, and that body passed an act[156] declaring that, "The provisions of law relating to the qualification and admission to practice of attorneys-at-law shall apply to women." The petition of Lelia Josephine Robinson to the Supreme Court was as follows:
1. The best administration of justice may be most safely secured by allowing the representation of all classes of the people in courts of justice.
2. To allow women to practice at the bar as attorneys is only to secure to the people the right to select their own counsel. It is to give the women of Massachusetts the opportunity of consulting members of their own sex for that advice and assistance which none but authorized attorneys and counsellors are legally qualified to give.
3. To exclude women from the bar would be to do an injustice to the community, in preventing free and wholesome competition of existing talent, and to do still greater injustice to those women who are qualified for the profession, by shutting them out from an honorable and remunerative means of gaining a livelihood.
4. To exclude women from the bar because there are certain departments of the profession which are peculiarly ill-adapted to their sex and nature, would be to assume arbitrarily that, with entire lack of judgment or discretion, modesty or policy, they would seek or accept such business; and to close to them those avenues of the profession for which they are generally admitted to be eminently well adapted, for such a reason, and upon such an assumption, would be so grossly unjust that no argument can be based on such an impossible contingency.
Your applicant, having faithfully and diligently pursued the study of law for three years, being a graduate of the Boston University Law School, and having complied with the other requirements of the statute and the rules of court upon the subject, respectfully prays that her petition for examination, which was duly filed, may be favorably considered, and that it be included in the general notice to the Board of Examiners of Suffolk county.
Lelia Josephine Robinson.
The opinion given by the Supreme Judicial Court, so far as it relates to the main point at issue, is as follows:
The question presented by this petition and by the report on which it has been reserved for our determination, is whether, under the laws of the commonwealth, an unmarried woman is entitled to be examined for admission as an attorney and counsellor of this Court. This being the first application of the kind in Massachusetts, the Court, desirous that it might be fully argued, informed the executive committee of the Bar Association of the city of Boston of the application, and has received elaborate briefs from the petitioner in support of her petition and from two gentlemen of the bar as amici curiæ in opposition thereto. The statute under which the application is made is as follows: "A citizen of this State, or an alien who has made the primary declaration of his intention to become a citizen of the United States, and who is an inhabitant of this State, at the age of twenty-one years and of good moral character, may, on the recommendation of an attorney, petition the Supreme Judicial or Superior Court to be examined for admission as an attorney, whereupon the Court shall assign a time and place for the examination, and if satisfied with his acquirements and qualifications he shall be admitted." St. 1876, c. 107.
The word "citizen," when used in its most common and most comprehensive sense, doubtless includes women; but a woman is not, by virtue of her citizenship, vested by the Constitution of the United States, or by the constitution of the commonwealth, with any absolute right, independent of legislation, to take part in the government, either as voter or as an officer, or to be admitted to practice as an attorney. Miuor vs. Happersett, 51 Wall. 162. Bradwell vs. Illinois, 16 Wall. 130. The rule that "words importing the masculine gender maybe applied to females," like all other general rules of construction of statutes, must yield when such construction would be either "repugnant to the context of the same statute," or "inconsistent with the manifest intent of the legislature." Gen. Sts. c. 3, § 7.
The only statute making any provisions concerning attorneys, that mentions women, is the poor-debtor act, which, after enumerating among the cases in which an arrest of the person may be made on execution in an action of contract, that in which "the debtor is attorney-at-law," who has unreasonably neglected to pay to his client money collected, enacts, in the next section but one, "that no woman shall be arrested on any civil process except for tort." Gen. Sts. c. 124, §§ 5, 7. If these provisions do not imply that the legislature assumed that women should not be attorneys, they certainly have no tendency to show that it intended that they should. The word "citizen," in the statute under which this application is made, is but a repetition of the word originally adopted with a view of excluding aliens, before the statute of 1852, c. 154, allowed those aliens to be admitted to the bar who had made the preliminary declaration of intention to become citizens. Rev. Sts., c. 88, § 19. Gen. Sts., c. 121, § 28.
The reënactment of the act relating to the admission of attorneys in the same words without more so far as relates to the personal qualifications of the applicant, since other statutes have expressly modified the legal rights and capacity of women in other important respects, tends rather to refute than to advance the theory that the legislature intended that these words should comprehend women. No inference of an intention of the legislature to include women in the statutes concerning the admission of attorneys can be drawn from the mere omission of the word "male." The only statute to which we have referred, in which that word is inserted, is the statute concerning the qualifications of voters in town affairs, which, following the language of the article of the constitution that defines the qualifications of voters for governor, lieutenant-governor, senators and representatives, speaks of "every male citizen of twenty-one years of age," etc. Gen. Sts. c. 18, § 19. Const. Mass. Amendments, art. 3. Words which taken by themselves would be equally applicable to women and to men are constantly used in the constitution and statutes, in speaking of offices which it could not be contended, in the present state of law, that women were capable of holding.
The Courts of the commonwealth have not assumed by their rules to admit to the bar any class of persons not within the apparent intent of the legislature as manifested in the statutes. The word "persons," in the latest rule of Court upon the subject, was the word used in the rule of 1810 and in the statutes of 1785 and 1836, at times when no one contemplated the possibility of a woman's being admitted to practice as an attorney. 121 Mass. 600. 6. Mass. 382. St. 1785, c. 23. Rev. St. c. 18, 20. Gen. Sts. c. 121, § 29. The United States Court of Claims, at December term, 1873, on full consideration, denied an application of a woman to be admitted to practice as an attorney upon the ground "that under the constitution and laws of the United States a Court is without power to grant such an application, and that a woman is without legal capacity to take the office of an attorney." Lockwood's Case, 9 Ct. of Claims, 346, 356. At October terms 1876 of the Supreme Court of the United States, the same petitioner applied to be admitted to practice as an attorney and counsellor of that Court, and her application was denied.
The decision has not been officially reported, but upon the record of the Court, of which we have an authentic copy, it is thus stated: "Upon the presentation of this application, the chief-justice said that notice of this application having been previously brought to his attention, he had been instructed by the Court to announce the following decision upon it: By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are permitted to practice before it as attorneys and counsellors. This is in accordance with immemorial usages in England, and the law and the practice in all the States until within a recent period, and the Court does not feel called upon to make a change until such change is required by statute or a more extended practice in the highest Courts of the States." The subsequent act of congress of February 15, 1879, enables only those women to be admitted to practice before the Supreme Court of the United States who have been for three years members of the bar of the highest Court of a State or territory, or of the Supreme Court of the District of Columbia.
The conclusion that women cannot be admitted to the bar under the existing statutes of the commonwealth is in accordance with judgments of the highest Courts of the States of Illinois and Wisconsin. Bradwell's Case, 55 Ill., 525. Goodell's Case, 39 Wis., 232. The suggestion in the brief of the petitioner that women have been admitted in other States can have no weight here, in the absence of all evidence that (except under clear affirmative words in a statute) they have ever been so admitted upon deliberate consideration of the question involved, or by a Court whose decisions are authoritative.
It is hardly necessary to add that our duty is limited to declaring the law as it is, and that whether any change in that law would be wise or expedient is a question for the legislative and not for the judicial department of the government.
Marcus Morton, Chief-Justice,
Petition dismissed.
[Signed:] Charles Devens, William E. Endicott, William Allen, Otis P. Lord, Charles Allen, Walbridge A. Field.
| [Signed:] | Charles Devens, | William E. Endicott, |
| William Allen, | Otis P. Lord, | |
| Charles Allen, | Walbridge A. Field. |