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.
Mary Hall of Hartford, Connecticut, in 1882, after having completed the
prescribed term of study and passed the required examination, applied to
the Superior Court in Hartford county for a license to practice law. The
statute under which her application was made provided that the Superior
Court “may admit as attorneys such persons as are qualified therefor
agreeably to the rules established by the judges of said court.” This
statute had “come down, with some changes, from the year 1750, and in
essentially its present form from the year 1821.” The bar of Hartford
county “voted to recommend the admission of the applicant subject to the
opinion of the Court whether, as a woman, she could be legally admitted,
and appointed Messrs. McManus and Collier to argue the case before the
Court.” The Court reserved the application for the advice of the Supreme
Court. The latter Court “held, that under the statute a woman could be
admitted as an attorney.” This being contra to the holdings of the
United States and State courts in similar cases, which we have cited,
was refreshing indeed. The opinion merits quotation quite at length. It
was delivered by Chief Justice Park. The part selected reads:
“No one would doubt that a statute passed, at this time, in the same
words would be sufficient to authorize the admission of women to the
bar, because it is now a common fact and presumably in the minds of
legislators, that women in different parts of the country are and for
some time have been following the profession of law. But if we hold that
the construction of the statute is to be determined by the admitted fact
that its application to women was not in the minds of the legislators
when it was passed, where shall we draw the line? All progress in social
matters is gradual. We pass almost imperceptibly from a state of public
opinion that utterly condemns some course of action to one that strongly
approves it. At what point in the history of this change shall we regard
a statute, the construction of which is to be affected by it, as passed
in contemplation of it? When the statute we are now considering was
passed it probably never entered the mind of a single member of the
Legislature that black men would ever be seeking for admission under it.
Shall we now hold that it cannot apply to black men? We know of no
distinction in respect to this rule between the case of a statute and
that of a constitutional provision.... Events that gave rise to
enactments may always be considered in construing them. This is little
more than the familiar rule that in construing a statute we always
inquire what particular mischief it was designed to remedy. Thus the
Supreme Court of the United States has held that in construing the
recent amendments of the Federal Constitution, although they are general
in their terms, it is to be considered that they were passed with
reference to the exigencies growing out of the emancipation of the
slaves, and for the purpose of benefiting the blacks. But this statute
was not passed for the purpose of benefiting men as distinguished from
women. It grew out of no exigency caused by the relation of the sexes.
Its object was wholly to secure the orderly trial of causes and the
better administration of justice.... We are not to forget that all
statutes are to be construed, as far as possible, in favor of equality
of rights. All restrictions upon human liberty, all claims for special
privileges, are to be regarded as having the presumption of law against
them, and as standing upon their defense, and can be sustained, if at
all by valid legislation, only by the clear expression or clear
implication of the law.
“We have some noteworthy illustrations of the recognition of women as
eligible, or appointable to office under statutes of which the language
is merely general. Thus, women are appointed in all parts of the country
as postmasters. The act of Congress of 1825 was the first one conferring
upon the Postmaster-General the power of appointing postmasters, and it
has remained essentially unchanged to the present time. The language of
the act is, that “the Postmaster-General shall establish post-offices
and appoint postmasters.” Women are not included except in the general
term “postmasters,” a term which seems to imply male persons.... The
same may be said of pension agents. The acts of Congress on the subject
have simply authorized “the President, by and with the advice and
consent of the Senate, to appoint all pension agents, who shall hold
their offices for the term of four years, and shall give bond,” etc. At
the last session of Congress a married woman in Chicago was appointed
for a third term pension agent for the State of Illinois, and the public
papers stated that there was not a single vote against her confirmation
in the Senate. Public opinion is everywhere approving of such
appointments. They promote the public interest, which is benefited by
every legitimate use of individual ability, while mere justice, which is
of interest to all, requires that all have the fullest opportunity for
the exercise of their abilities.... We have had pressed upon us by the
counsel opposed to the applicant, the decisions of the courts of
Massachusetts, Wisconsin, and Illinois, and of the United States Court
of Claims, adverse to such an application. While not prepared to accede
to all the general views expressed in those decisions, we do not think
it necessary to go into a discussion of them, as we regard our statute,
in view of all the considerations affecting its construction, as too
clear to admit of any reasonable question as to the interpretation and
effect which we ought to give it.” (Conn. Supreme Ct. Rep., vol. 1. p.
131).
We have a record showing that there were fifty-six women attorneys in
the country at the time this last decision was rendered, in July, 1882,
of whom thirty-one had graduated from law schools. Five of the fifty-six
have gone to the spirit land. The first to go was Lemma Barkaloo, of
Brooklyn, N. Y., the second to be enrolled as an attorney, and the first
to try a case since the days of Mistress Brent. She was refused
admission to the Law Department of Columbia College, and entered that of
Washington University at St. Louis, in 1869. Without completing the
course, she was admitted to the Circuit Court of St. Louis, and to the
Supreme Court of the State in 1870. She died the same year of typhoid
fever. The St. Louis Bar resolved “that in her erudition, industry, and
enterprise, we have to regret the loss of one who, in the morning of her
career, bade fair to reflect credit upon our profession and a new honor
upon her sex.” Alta M. Hulett, of Chicago, died in 1877. She prepared
the bill to secure admission of women in Illinois and lectured in its
interest during its pendency. She was admitted on her nineteenth
birthday. Ellen A. Martin, in speaking of her in an article on
“Admission of Women to the Bar,” published in the initial number of the
_Chicago Law Times_, says: “Miss Hulett was a young woman of remarkable
energy and push, and of excellent ability and business judgment. She had
tact and skill in the acquisition and management of business, and was a
capable and efficient lawyer. She had a wonderful faculty for making
friends who interested themselves in her success, and in the three years
of her practice acquired an amount of profitable business that is not
generally expected in law practice until after a much longer period. Her
successful, and it may fairly be termed brilliant, career had a marked
influence in producing a favorable attitude of the public toward woman
practitioners.” Lavinia Goodell, daughter of the well-known
Abolitionist, Rev. Wm. Goodell, was the pioneer lawyer of Wisconsin. She
was admitted to the bar, after passing a brilliant examination, in 1873.
The case which greatly extended her reputation throughout the State and
country was one involving twelve hundred dollars, in which her client
was a woman. The case was carried from the county court to the circuit
court, and appealed from that to the supreme court, where she won.
According to the law of Wisconsin, Miss Goodell’s admission to the
circuit court admitted her to all courts in the State except the supreme
court. Upon carrying up her case, and applying for admission to this,
the chief justice (Ryan), refused her on the ground of sex. The
arguments appear in substance in vol. xxxix. of Wisconsin reports.
She afterward reviewed the chief justice’s decision in the _Chicago
Legal News_ and unquestionably had the better of him in argument. She
also prepared a bill and sent it to the State Legislature, providing
that no person should be refused admission to the bar on account of sex.
A petition asking for its passage was signed by the circuit judge and
every member of the bar in the county. In such high esteem was Miss
Goodell’s practice held, that her best paying clients were women. She
was admitted to the supreme court in 1875.
She did much work for temperance and woman suffrage, two subjects which
were very near her heart. Her life was devoted to good deeds, which only
ended here when she was called up higher. She died in 1880, in
Milwaukee, where she had gone for medical treatment.
M. Fredrika Perry, of Chicago, died in 1883. She graduated from the Law
School of Michigan University in March, 1875, was immediately admitted
to the Michigan bar, and in the fall to the Illinois bar. Soon
afterward, on motion of Miss Hulett, she was admitted to the United
States circuit and district courts for the Northern District of
Illinois, Miss Hulett being the first woman admitted to these courts and
to any United States court. She continued in practice in partnership
with Miss Martin, under the name of Perry & Martin, until her death (the
result of pneumonia). Speaking of her, Miss Martin says: “Miss Perry was
a successful lawyer and her success was substantial. She combined in an
eminent degree the qualities which distinguish able barristers and
jurists; her mind was broad and catholic, clear, quick, logical, and
profound; her information both on legal and general matters was
extensive. She had a clear, strong, and pleasant voice, and was an
excellent advocate, both in presenting the law to the court and the
merits of a case to the jury. She was a skillful examiner of witnesses,
and understood as few attorneys do, save practitioners who have grown
old in experience, the nice discriminations of Common Law Pleadings and
the Rules of Evidence, the practical methods by which rights are secured
in courts. All her work was done with the greatest care. She was
engrossed in the study and practice of law, appreciating its spirit and
intent, and gained steadily in efficiency and practical power, year by
year. She had the genius and ability for the highest attainment in all
departments of civil practice, and joined with these the power of close
application and hard work. She belonged to the Strong family, which has
furnished a great deal of the legal talent of the United States.” Judge
Tuley, before whom she often appeared, said of her at the bar meeting
called to take action upon her death, “I was surprised at the extent of
her legal knowledge and the great legal acumen she displayed.” Tabitha
A. Holton, of Dobson, North Carolina, died in 1886. She was admitted to
the Supreme Court of the State in January, 1878, having passed a highly
creditable examination. She practiced in Dobson, in partnership with her
brother, Samuel L. Holton, devoting herself chiefly to office work and
the preparation of civil cases, until a short time before her death.
Ada H. Kepley, of Effingham, Illinois, was the first woman to graduate
from a law school in this or any other country. She took her degree in
June, 1870, from the Union College of Law, Chicago.
The major part of law schools of the United States now freely admit
women when applied to for that purpose. Among those still refusing are
the law departments of Yale, Harvard, and Georgetown universities, and
Columbia College; the Cumberland University Law School of Lebanon,
Tennessee, the Law Department of the Washington and Lee University in
Lexington, Virginia, and the Law Department of the University of
Virginia. “One woman, however, does wear the honors of the degree of
Bachelor of Laws as conferred by Yale. This is Alice R. Jordan, now Mrs.
Blake, who, after a year of study in the Law School of Michigan
University and admission to the bar of Michigan in June, 1885, entered
the Law School at Yale in the fall of the same year, and graduated at
the close of the course with the degree as already stated. Dean Wayland,
of Yale Law School, sends me a catalogue of the University, and writes
that the marked paragraph on page 25 is intended to prevent a repetition
of the Jordan incident. The paragraph referred to appears on the page
devoted to departments of instruction, and reads: ‘It is to be
understood that the courses of instruction above described are open to
persons of the male sex only, except where both sexes are specifically
included.’”—(Lelia J. Robinson, LL.B., in an article on “Women Lawyers
in the United States,” in _The Green Bag_, January, 1890.) As to the
relative standing of the sexes as students in law schools, Hon. Henry
Wade Rogers, dean of the department of law of Michigan University, says:
“The women who have attended the Law School have compared favorably in
the matter of scholarship with the men. They are just as capable of
acquiring legal knowledge as men are.” This law school has graduated
more women than any other in the country. Hon. Henry Booth, dean of
Union College of Law, gives the standing of women in scholarship as that
of a fair average, and says: “We discover no difference in the capacity
of the sexes to apprehend and apply legal principles. We welcome ladies
to the school and regard their presence an advantage in promoting
decorum and good order.”
A law school for women has recently been opened in New York City. Its
founder is Madame Emile Kempin-Spyri, a graduate of the School of
Jurisprudence, of the University of Zurich, in 1887. Her application for
admission to the order of advocates of her native country, Switzerland,
being denied, she emigrated to the United States. She is the counsel of
the Swiss Legation in Washington.[161]
Women lawyers of this country are entitled to practice before all
courts, State and national, the same as male lawyers. When not admitted
under existing statutes, the respective legislatures, so far, with two
exceptions, have promptly passed enabling acts. Women anxious for
admission were the first to advocate these. One exception to the usual
legislative promptness is found in the case of Annie Smith, of Danville,
Virginia. The Judge of the Corporation Court, to whom she applied in
1889 for a certificate to enable her to be examined, refused it on the
ground that for a woman to obtain license the present statute would have
to be amended. Mrs. Smith, aided by her husband, an attorney, vainly
endeavored to secure the necessary enactment during the last session of
the State Legislature. The bill, a general one, was voted down; but a
private bill, to enable Mrs. Smith only to obtain license, was favorably
reported. The Legislature, however, adjourned before final action on it.
Mr. and Mrs. Smith will continue their efforts until successful.