ADA M. BITTENBENDER.
The history of various ages and nations, since the days of the prophetess Deborah, who filled the office of judge among the children of Israel (Judges iv. 4), records the names of women distinguished for their legal learning, some of whom were also successful advocates. Among the latter we content ourselves with mentioning Aspasia, who pleaded causes in the Athenian forum, and Amenia Sentia and Hortensia in the Roman forum. But, alas, the right of Roman women to follow the profession of advocate was taken away in consequence of the obnoxious conduct of Calphurnia, who, from “excess of boldness” and “by reason of making the tribunals resound with howlings uncommon in the forum,” says Velerius Maximus, was forbidden to plead. (Velerius Maximus, Hist. lib. viii. ch. iii.) The law, made to meet the especial case of Calphurnia, ultimately, “under the influences of the anti-feministic tendencies” of the period, was converted into a general one. In its wording the law sets forth that the original reason of woman’s exclusion “rested solely on the doings of Caphrania.” (Lex. I, sec. 5, Dig. iii. i.)
This exclusion furnished a precedent for other nations which, in the course of time, was followed. Dr. Louis Frank, of the Faculty of Law at Bologna, in a pamphlet entitled “La Femme Avocat,” translated by Mary A. Greene, LL.B., of Boston, and published in 1889 in serial form in the Chicago Law Times, in speaking on this point, says:
“Without taking time to discuss the rudimentary law of the ancient German Colonies, we recall only that institution of Germanic origin, the vogt or advocatus, whose care it was to represent every woman at the court of the suzerain, in judicial acts and debates.... The ancient precedents were conceived and established in a spirit which was extremely favorable to woman. There is not a trace in them of the privileges of masculinity. They allowed woman to be a witness, a surety, an attorney, a judge, an arbitrator. Later, under the influence of the canon law, and in the early renaissance of juridical study, under the action of the schools of Roman law, a reaction made itself felt against the rights of women, and the old disabilities of Roman legislation reappeared and became a part of the legal institutions.”
Further on, Dr. Frank says:
“The forwardness of Calphurnia appeared to all the ancient jurists a peremptory reason for excluding women from the forum.”
From among his citations to prove this assertion we extract the following:
“Boutillier tells us that a woman could not hold the office of attorney or of advocate. ‘For know, that a woman, in whatever state she may be, married or unmarried, cannot be received as procurator for any person whatever. For she was forbidden (to do) any act of procuration because of Calphurnia, who considered herself wiser than any one else; she could not restrain herself, and was continually running to the Judge without respect for formalities, in order to influence him against his opinion.’ (Somme Rural, Edit. Mace, Paris, 1603, L. i. tit. x. p. 45.) Further on, designating those ‘who may be advocates in court and who not,’ Boutillier cites as incapable minors, the deaf, the blind, clerks, sergeants, and women. ‘For women are excluded because of their forwardness, like Calphurnia, who could never endure that her side should be beaten nor that the judge should decide against her, without speaking forwardly to the judge or to the other party.’ (Id. L. ii. tit. ii. p. 674.)... In Germany as in France, the inferiority of woman was justified upon the same grounds. ‘No woman,’ says the Miroir de Souabe, ‘can be guardian of herself nor plead in court, nor do it for another, nor make complaint against another, without an advocate. They lost this through a gentlewoman named Carfurna, who behaved foolishly in Rome before the ruler.’” (Miroir de Souabe, T. ii. ch. xxiv., Lassberg, 245.)
The prohibition against women acting as advocates, or barristers, the latter being the term used to designate the office in England, wherever adopted, has continued in force to the present time outside of the United States of America. In England women are permitted to qualify for and practice as attorneys at law and solicitors in chancery, but have not been permitted to become barristers and exercise the rights of that rank in the prosecution of their cases. Were it not for the Calphurnian decree, they still would be ineligible because of being denied admission to the four Inns of Court, where barristers are trained and ranked. These Inns of Court are voluntary societies from whose power to reject applications for membership there is no appeal.
The common law of England becoming the law of this country, its women were thought also ineligible to admission to the bar, and but one woman, so far as we know, attempted to test the matter until within the last quarter of a century. This exception was a very notable one in colonial days. It was the case of Margaret Brent, spinster and gentlewoman. She and her sister Mary, kinswomen of the first Lord Proprietary and Governor of Maryland, came to the Province in 1638, “bringing over nine colonists, five men and four women. They took up manors, imported more settlers, and managed their affairs with masculine ability.” So says William Hand Browne in his “History of a Palatinate.” The Governor, Leonard Calvert, died the 9th of June, 1647, leaving Mistress Brent his sole executrix. At the time of his death, he was attorney for his brother, Cecilius Calvert, second Lord Baltimore, the Lord Proprietary. Mistress Brent succeeded him as attorney for his lordship. Her right to act in this capacity, which she at first claimed “on the strength of her appointment as executrix,” was questioned in the provincial court, where she had occasion frequently to appear in regard to his lordship’s “private estate and transactions in the Province.” The Court ordered that she “should be received as his lordship’s attorney.” The question came up in court on the 3d day of January, 1648, of which record was made as follows: