Woman's work in America

by Unknown

The Legislature of Illinois, in 1872, enacted that “No person shall be precluded or debarred from any occupation, profession, or employment (except military) on account of sex.” But Mrs. Bradwell, ever since being occupied with editorial work on the Chicago Legal News, which she founded in 1868, and with the publication of Bradwell’s Appellate Court Reports and other legal works, did not renew her application for a license to practice law. The sequel is this, copied from the Chicago Legal News of April 5, 1890: “We are pleased to say that last week, upon the original record, every member of the Supreme Court of Illinois cordially acquiesced in granting, on the Court’s own motion, a license as an attorney and counselor at law to Mrs. Bradwell.”

The next court case was that of Mrs. Belva Ann Lockwood, of Washington, D. C., who graduated from the Law School of the National University, and was admitted to practice before the Supreme Court of the District, in 1873. The same year a motion was made for her admission to the bar of the U. S. Court of Claims. This Court refused to act upon the motion, “for want of jurisdiction.” The opinion concludes in these words: “The position which this Court assumes is 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 attorney.” (Court of Claims Reports, vol. ix. p. 346.)

At the October term, 1876, of the Supreme Court of the United States, Mrs. Lockwood applied for admission as practitioner of that court. Her application was denied. The decision has not been officially reported, but, upon the record of the Court, 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 admitted to practice before it as attorneys and counselors. This is in accordance with immemorial usage in England, and the law and practice in all the States, until within a recent period; and the Court does not feel called upon to make a change until such a change is required by statute or a more extended practice in the highest courts of the States.”

Mrs. Lockwood continued practicing before the courts of the District and elsewhere, outside of United States courts, until Congress passed a bill providing, “That any woman who shall have been a member of the bar of the highest court of any State or Territory, or of the Supreme Court of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States” (Approved, Feb. 15, 1879). Mrs. Lockwood drafted the bill and secured its passage. She was the first woman to be admitted under the law and to practice before this Supreme Court. (Since then, six others have been admitted, viz.: Laura De Force Gordon of Stockton, California; Ada M. Bittenbender of Lincoln, Nebraska; Carrie Burnham Kilgore of Philadelphia; Clara M. Foltz of San Diego, California; Lelia Robinson-Sawtelle of Boston, and Emma M. Gillet of Washington, D. C. Mrs. Bittenbender moved the admission of Miss Gillet, the first instance of one woman moving the admission of another to the highest court in the country.) A few days after Mrs. Lockwood’s admission, she received word from the Court of Claims that she could now plead before it.

The next State court to be heard from on the subject was the Supreme Court of Wisconsin, in 1875. The matter was the motion to admit Miss R. Lavinia Goodell to the bar of that court. Miss Goodell, the year before, had been admitted to the bar of the circuit court of Rock county in that State. The argument, read on the hearing of the motion by I. C. Sloan, Esq., was prepared by her. The motion was denied, it being held that “To entitle any person to practice in this court, the statute requires that he shall be licensed by its order, and no right to such an order can be founded on admission to the bar of a circuit court. The language of the statute relating to the admission of attorneys (which declares that ‘he shall first be licensed,’ etc.) applies to males only; and the statutory rule of construction that ‘words of the masculine gender may be applied to females,’ ‘unless such construction would be inconsistent with the manifest intention of the Legislature,’ cannot be held to extend the meaning of this statute, in view of the uniform exclusion of females from the bar by the common law, and in the absence of any other evidence of a legislative intent to require their admission.” Chief Justice Ryan delivered the opinion of the Court. The following extract from that opinion we believe will be read with interest, and remain of historic value as showing the fossilized misconceptions woman combated with in attaining the generally acceptable position in the legal profession in this country which she now holds:

“We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well-being of society; and, to be honorably filled and safely to society, exacts the devotion of life. The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as in the profession of the law, are departures from the order of nature; and when voluntary, treason against it. The cruel chances of life sometimes baffle both sexes, and may leave women free from the peculiar duties of their sex. These may need employment, and should be welcome to any not derogatory to their sex and its proprieties, or inconsistent with the good order of society. But it is public policy to provide for the sex, not for its superfluous members; and not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours. There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife. Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battlefield. Womanhood is molded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice; all the unclean issues, all the collateral questions of incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, divorce.”

Ah, dear sir, it is largely to “mix professionally in all the nastiness of the world which finds its way into courts of justice,” that many, very many women seek admission to the bar. In every case involving any one of the “unclean issues” or “collateral questions” you have named, some woman must appear as complainant or defendant, or be in some way associated. What more proper, then, than that some other woman should be in court, clothed with legal power, to extend aid and protection to her sister in trouble, that justice may be done her, and the coarse jest and cruel laugh, so proverbial in social impurity cases before woman’s advent as pleader, prevented! And we respectfully call upon the mothers of every land to see to it that in no instance in the future of the world shall a woman be summoned to the bar of justice as a party or witness in any case involving one of these “unclean issues” or “collateral questions” without being accompanied by one or more of her own sex of irreproachable character. When such emergencies are otherwise unprovided for, let the “good mothers of Israel” in the place convene and depute one or more of their number to perform this duty. It is a duty, unquestionably, to be performed in the interest not only of one sex, but of mankind generally; for what affects one sex for good or evil, affects both.

Aye, Mr. Chief Justice, “the profession enters largely into the well-being of society”; and it is because of this fact woman desires and ought to enter it. This is the best of reasons. As to her motherhood prerogatives, experience has shown her able to perform these as the Father of the Universe and Mother Nature would have her, and still not to be precluded from giving the profession the necessary “devotion” to the end that it shall be “honorably filled and safely to society.” If “the law of nature destines and qualifies the female sex ... for the custody of the homes of the world and their maintenance in love and honor,” as you say, Mr. Chief Justice,—we say “if” because we believe the male sex to be joint-heir,—that does not mean that all women, or any woman, should stay inside of four walls continually to cook, wash dishes, sweep, dust, make beds, wash, iron, sew, etc. Oh, no! A woman may properly act as the custodian of a home and maintain it in love and honor, and do none of these things. Instead of such “life-long callings of women” being “departures from the order of nature, and, when voluntary, treason against it,” as you think, Mr. Chief Justice, we hold that to stifle the longings of an immortal soul to follow any useful calling in this life, to be a “departure from the order of nature, and, when voluntary, treason against it.”

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

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