service than that given by its consecrated women. For its sake, they
cheerfully accepted martyrdom, in its most cruel forms. Princesses of
the blood and other women of noble birth left the allurements of courts
for the studious seclusion of the cloister, or, seeking out the poor and
needy, they divided with them their substance. No conditions of
miserable poverty or loathsome disease hindered the most tender
devotion. In all ages and in all lands women have given proof of a
loyalty to Christianity as sincere as it was serviceable. By their
proselyting power in converting royal relatives, they were the means of
bringing not only Rome but France, England, Spain, Hungary, Poland, and
Russia under Christian rule.[160]
Is the church to-day less in need of such service than in the past, that
it will seek in any way to circumscribe the work of its faithful women
by denying to them such sanction, through its prescribed forms, as it
bestows freely upon like qualified men, is the question which presses
itself persistently forward for settlement.
Certain it is that, as ecclesiastical despotism loses its hold upon the
people, they will more readily seek spiritual guidance under a broader
law of adaptation and natural fitness, in which women must stand at
least an equal chance with men. What the world has already lost by their
exclusion from a controlling influence in the church, finds its most
painful illustration in the widespread and deep depravity of the masses
in our great cities, which the church, in none of its branches, has
materially lessened. From the efforts now being made in America for the
restoration of the Diaconate of woman, it is safe to argue a change for
the better in this respect. The new departure in methods has also an
important illustration in the city of Chicago, where, under the
leadership of D. L. Moody, gifts amounting to $250,000 have been secured
for a theological school and home, to be conducted under the auspices of
the Chicago Evangelical Society, which is to be open to both sexes upon
the same terms. Its object is the evangelization of the unchurched
masses of that great city.
The evils which have resulted to society, and which threaten the very
life of the nation by the long neglect to establish proper relations
between the vast army of ignorant and degraded beings throughout the
land with the active life of Christianity, have become too appalling to
be contemplated with indifference, even by the most callous and selfish.
The call for service of a most heroic kind is urgent and pressing. For
this work of redemption, women have an especial fitness. Invested with
all the sanction the church can bestow, supplemented by municipal
authority where necessary, let the Christian womanhood of America rise
to the level of the demand; “In His Name,” their motto, In His spirit,
their inspiration. No pure-hearted, strong-purposed woman but can find a
place here to labor as “a minister of the sanctuary and of the true
tabernacle, which the Lord pitched, and not man.”
IX.
WOMAN IN LAW.
BY
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:
“This day the question was moved in court whether or noe, Mr. Leon.
Calvert (remayning his L^{p’s} sole attorney within this Province before
his death, and then dying) the said Mr. Calvert’s administrator was to
be received for his L^{p’s} Attorney within this Province untill such
time as his Lordship had made a new substitution, or that some other
remayning uppon the present Commission were arrived into the Province.
The Governor demanding Mr. Brent’s opinion upon the same Quere. Hee
answered that he did conceive that the administrator ought to be looked
uppon as attorney both for recovering of rights into the estate and
paying of dew debts out of the estate and taking care for the estate’s
preservation: But not further, untill his Lordship shall substitute some
other as aforesaid. And thereuppon the Governor concurred. It was
ordered that the administrator of Mr. Leon Calvert aforesaid should be
received as his L^{p’s} Attorney to the intents above.” (Archives of
Maryland, vol. iv. p. 358.)
The provincial court records show that Mistress Brent not only
frequently appeared in court as his lordship’s attorney, in which
capacity she continued to act for some years, but also in prosecuting
and defending causes as attorney for her brother, Capt. Giles Brent, and
in regard to her personal affairs, and as executrix of Leonard Calvert’s
estate (the record calls her “administrator”; she was appointed by the
testator to execute his will). There is no record of any objection being
made to her practicing as attorney on account of her sex. At that time
the provincial court at St. Mary’s “was the chief judicial body in the
Province, being not only a court of first instance for all matters
civil, criminal, and testamentary for the city and county of St. Mary’s,
but having also appellate jurisdiction over the county courts. It was
composed of the Governor as presiding judge, and one or more of the
members of the council as associate judges.” (Archives of Maryland, vol.
iv. preface.)
Unmindful of the words “but not further” in the opinion, Mistress Brent
asked for voice and vote in the General Assembly on account of her
position as his lordship’s attorney. This request was denied. Whether
her sex entered into the denial is a question without solution. The
Assembly proceedings for January 21, 1648, make mention of the fact in
these words:
“Came Mistress Margarett Brent and requested to have vote in the howse
for herselfe and voyce allso, for that att the last court, 3^d Jan., it
was ordered that the said Mistress Brent was to be looked uppon and
received as his L^{p’s} Attorney. The Gov^r denyed that the said
Mistress Brent should have any vote in the howse. And the said Mistress
Brent protested against all proceedings in this present Assembly,
unlesse shee may be present and have vote as aforesaid.” (Archives of
Maryland, vol. i. p. 215.)
The first woman since the days of Mistress Brent to ask for and obtain
admission to the bar of this country was Arabella A. Mansfield of Mt.
Pleasant, Iowa. She studied in a law office and was admitted to the Iowa
bar in June, 1869, under a statute providing only for admission of
“white male citizens.” The examining committee in its report, which is
of record, said:
“Your committee have examined the provisions of section 2700 of chapter
114, of the Revision of 1860, concerning the qualifications of attorneys
and counselors in this State [section 2700 provided for the admission of
“white male persons.” Ed.], but in considering the section in connection
with division 3 of section 29, chapter 3 of the Revision, on
construction of statutes [section 29 provided that “words importing the
masculine gender only may be extended to females.” ED.], we feel
justified in recommending to the court that construction which we deem
authorized, not only by the language of the law itself, but by the
demands and necessities of the present time and occasion. Your committee
take unusual pleasure in recommending the admission of Mrs. Mansfield,
not only because she is the first lady who has applied for this
authority in this State, but because in her examination she has given
the very best rebuke possible to the imputation that ladies cannot
qualify for the practice of law.”
At the time of Mrs. Mansfield’s debut into the profession without
opposition, Myra Bradwell, of Chicago, having studied law under the
instruction of her husband, ex-Judge James B. Bradwell, was
unsuccessfully knocking at the door of the Supreme Court of Illinois for
admission. To give an understanding of the case, and line of argument
used in denying her application, we extract from the opinion of the
Court, delivered by Mr. Justice Lawrence, the following:
“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 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.... It is
to be remembered that at the time the statute was enacted [the statute
under which admission was sought, which provided that “no person shall
be permitted to practice as an attorney or counsellor at law,” etc. ED.]
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 also to be 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, 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.... 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 prepared to hold.... There are
some departments of the legal profession in which woman 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.” (Supreme Court Reports of Illinois, vol. lv. p. 535.)
The Supreme Court of Illinois having refused to grant to Mrs. Bradwell a
license to practice law in the courts of that State, she appealed the
case to the Supreme Court of the United States, where the judgment of
the State court was affirmed. She was there ably represented by Mr.
Matthew Hale Carpenter. Mr. Justice Miller delivered the opinion of the
court. In affirming the judgment, the refusal being made on the ground
that women are not eligible under the laws of Illinois, the court held
that “such a decision violates no provision of the Federal
Constitution”; that the right to practice law in the State courts is not
“a privilege or immunity of a citizen of the United States, within the
meaning of the first section of the fourteenth article of amendment of
the Constitution of the United States”; and that “the power of a State
to prescribe the qualifications for admission to the bar of its own
courts is unaffected by the fourteenth amendment, and this court cannot
inquire into the reasonableness or propriety of the rules it may
prescribe.” (16 Wallace’s Reports, Supreme Court U. S., p. 130). Mr.
Justice Bradley, while concurring in the judgment, gave expression to
his views in a separate opinion in which he took occasion to say that,
“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 womankind.” The Chief Justice, Salmon P. Chase, “dissented
from the judgment of the court, and from all of the opinions.”
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: