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  Rebels at the Bar

  Rebels at the Bar

  The Fascinating, Forgotten Stories of

  America’s First Women Lawyers

  JILL NORGREN

  NEW YORK UNIVERSITY PRESS

  New York and London

  www.nyupress.org

  © 2013 by Jill Norgren

  All rights reserved

  Library of Congress Cataloging-in-Publication Data

  Norgren, Jill.

  Rebels at the bar : the fascinating, forgotten stories of America’s first women lawyers / Jill Norgren.

  pages cm

  Includes bibliographical references and index.

  ISBN 978-0-8147-5862-5

  ISBN 978-0-8147-5863-2 (e-book)

  ISBN 978-0-8147-5898-4 (e-book)

  1. Women lawyers—United States—Biography. 2. Women lawyers—

  United States—History—19th century. I. Title.

  KF367.N67 2013

  340.092’520973—dc23

  2012040759

  References to Internet websites (URLs) were accurate at the time of writing.

  Neither the author nor New York University Press is responsible for URLs that

  may have expired or changed since the manuscript was prepared.

  New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books.

  Manufactured in the United States of America

  10 9 8 7 6 5 4 3 2 1

  Dedicated to the memory of

  Andrea Horowitz,

  John M. Kuldau, and

  Philip E. Norgren

  Contents

  Preface

  1 The Women’s War

  2 White Knights and Legal Knaves

  3 Myra Bradwell: The Supreme Court Says No

  4 Lavinia Goodell: “A Sweeping Revolution of Social Order”

  5 Belva A. Lockwood: The First Woman Member of the U.S. Supreme Court Bar

  6 Clara Foltz’s Story: Breaking Barriers in the West

  7 Not Everyone Is Bold: Mary Hall and Catharine Waugh McCulloch in Conversation

  8 Lelia Robinson and Mary Greene: Two Women from Boston University School of Law

  9 Law as a Woman’s Enterprise

  Epilogue

  Notes

  Select Bibliography

  Index

  About the Author

  Preface

  REBELS AT THE BAR describes the life stories of a small group of nineteenth-century women who became the first female attorneys in the United States.

  In 1865, at the conclusion of the American Civil War, the idea of equal rights found new expression. In the optimistic decade that followed, a handful of women acted on their aspirations to become lawyers. It was a radical ambition. Law was an all-male profession, and most Americans believed that any woman who did not need to work outside her home, or farm, ought not to. Nevertheless, the idea of equality was powerful, and these women marched forward reading law with fathers and brothers, knocking on law school doors, and petitioning county, state, and federal courts for bar privileges.

  Progress was usually determined by where the women lived and which law school deans, and judges, they encountered. Columbia University’s School of Law refused to admit women when they first applied in 1868 and continued the ban for decades, while not long after the close of the war Washington University in St. Louis, Union College (incorporated in 1891 into Northwestern University), and the University of Michigan permitted female law students to matriculate. In progressive counties and states, judges accepted motions to admit women attorneys to the bar, or did so because of new state laws. In 1869, this opened the way to Arabella Mansfield in Iowa, and shortly thereafter, Lemma Barkaloo and Phoebe Couzins in Missouri, and Ada Kepley in Illinois.

  Elsewhere, however, courts declined to extend bar privileges to women, using the dodges of the common law, statutes employing the pronoun “he,” woman’s proper place, and God’s intentions. When Myra Bradwell appealed her exclusion from the practice of law by the state of Illinois, U.S. Supreme Court justice Joseph Bradley, in a concurring opinion, rejected her claim of Fourteenth Amendment rights, declaring it “the law of the Creator” that woman’s destiny should be limited to the “noble and benign offices of wife and mother.”1 In 1875, two years after the Bradwell decision, Wisconsin Supreme Court chief justice Edward Ryan also invoked Victorian mores in denying Lavinia Goodell’s petition for admission to the bar. He wrote that licensing her would mean “a sweeping revolution of social order” and cautioned that it would be “revolting” that “woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice.”2

  Ultimately, when women faced resistance of this kind, they won admission to law programs and bar privileges only by lobbying state legislatures or, in the case of the federal courts, Congress. In 1877 Lavinia Goodell prevailed at the Wisconsin legislature. In 1879 Congress passed the anti-discrimination legislation long lobbied for by Washington, D.C., attorney Belva Lockwood, a bill that opened the entire federal bar to qualified women lawyers.

  Rebels presents the individual but interwoven stories of the women whom historian Virginia Drachman has called “sisters-in-law.” It describes their struggle to train and to qualify as attorneys, exploring, in particular, what this first generation of American women lawyers did, after the initial jousting, with their hard-won professional privilege.

  Their story is one of nerve and courage, success and frustration. This first generation did everything that law and custom did not prevent to eliminate barriers to equality. They believed that gender equality was guaranteed by natural law and the founding documents of the nation. Yet these women were never given the opportunity to wear the black robes of a judge; they were not invited into the developing areas of corporate or railroad law; and, although male lawyers filled the ranks of legislatures and foreign diplomatic missions, presidents refused to appoint women to diplomatic offices just as the public refused to elect them to assemblies and senates.

  The first generation did practice civil and criminal law, solo and in partnership, in both back office and courtroom. They were deeply involved in reform movements, lobbying extensively on the major issues of their day—including suffrage, temperance, race (where Caucasian women lawyers were not always on the side of racial minorities), prison conditions, and international peace and arbitration. They authored countless books, articles, and newspaper columns. They pursued parallel careers as lecturers. In 1876 Belva Lockwood tried but failed to open a law school for women in Washington, D.C.; twenty years later lawyers Ellen Mussey and Emma Gillett succeeded. Several of these women ventured into politics. After each success, the women of the first generation reached higher—expanding their law practices, writing and lobbying more, and looking for ways to use their knowledge of the law to shape and order society.

  Myra Bradwell of Chicago made her mark as plaintiff in a case that went to the U.S. Su
preme Court, and as an intrepid entrepreneur in the field of legal publishing.3 Catharine Waite, a law school graduate at the age of fifty-six, also published a legal newspaper. Ada Bittenbender maintained a private practice with her husband and then married her talents and passions, as a lawyer and a reformer, and served as counsel for the Woman’s Christian Temperance Union. Kate Stoneman opened the New York State bar to women, and in Albany fought for woman suffrage. Lavinia Goodell, through her wrangling with Justice Ryan, showed herself to be a lawyer with an uncommonly fine theoretical mind. Mary Hall, Connecticut’s first woman attorney, practiced law and organized the charitable care of poor working children. She argued against a woman lawyer speaking in court. Her stance, much debated and not infrequently deplored by other women lawyers, prompted Chicago attorney Catharine Waugh McCulloch to urge that “some bristling aggressive woman lawyer … ought to stir up those slow moving people [who confine themselves to back office work].”4 She invited Hall to come visit her in Illinois, “where it is just as honorable for a woman to talk publicly to men as in private.”5

  Lelia Robinson practiced law in Boston and the Washington Territory. She won praise in the courtroom and broke new ground by writing law books for the lay public. Like some, but not all women attorneys, she held special hours for women clients who were too poor to pay or who needed special help. At the end of her (too short) life, Robinson showed an interest in entering elective politics. In this ambition, she mirrored the daring of Belva Lockwood, who, in addition to practicing law, in 1884 and 1888 ran for the office of U.S. president. Lawyer J. Ellen Foster showed a similar interest in politics, creating considerable controversy among women as a Republican temperance activist.

  Lockwood, like McCulloch and California lawyer Clara Foltz, sought out courtroom work despite negative societal attitudes about women working in courtrooms. They were women of considerable ego, talented attorneys who understood societal prejudices but courageously refused to be defeated by them. Foltz, with her friend and colleague, Laura De Force Gordon, opened the California bar to women and at the state supreme court argued successfully that Hastings Law School should not deny admission to women on the grounds of their sex. She and Gordon attracted media attention, even occasioning the production of a rare cartoon lampooning women lawyers. Foltz was, at her core, a reformer. She believed that women attorneys should improve the administration of justice and made good on this belief by lobbying for, beginning in 1890, the new and radical idea of a public defender.

  The first generation of American women lawyers was smart, bold, and defiant. Its members were charming, idealistic, and argumentative. They debated seemingly trivial issues such as whether to wear their hats in court as well as fundamental questions of service and professional identity. Would pro bono work be their ruin? (The women divided on this point.) Should they be “lady lawyers” or simply “lawyers”? Was a contingent fee case worth the financial risk? And was there any way around the fact that male attorneys had a far easier time making the acquaintance of businessmen in clubs, the business world, and public places? Even the most shy of these pioneering professionals were women of considerable spirit, women who believed that legal training would permit them a new place in the world. What place, of course, was the question.

  Rebels, equal part biography and the history of women’s earliest inroads into the profession of law, explores the journey taken by several of these pioneers, their clients, and the men who supported and opposed them. It expands our understanding of the legal profession in the last quarter of the nineteenth century, creating an additional narrative of what transpired as the profession matured. The book focuses on the understudied story of women who trained in law and then, like men, used that education to pursue careers in law, lobbying, politics, publishing, philanthropy, and teaching.

  The struggle for equality frames each woman’s biography and is a core theme throughout the book. The rights vocabulary of the nineteenth century did not include the term “feminism.” However, as chapter 1 illustrates, throughout the nineteenth century ever larger circles of women envisioned a more just American society. Collectively, in anti-slavery societies, at temperance meetings, or in suffrage associations, and individually, in journeys of personal assertiveness, women contested the social and legal barriers that obstructed the pursuit of opportunity and liberty.

  The women lawyers described in Rebels were Christians. Woman’s struggle to redefine the concept of equality confronted traditional Christian ideals concerning women’s and men’s roles. For many Christians submissiveness, silence, and the hearth defined the ideal of woman’s behavior and place. However, the Society of Friends and the Methodists, among other denominations, opened up biblical injunctions to new interpretation. Quaker Lucretia Mott spoke and led. Belva Lockwood permitted the Methodist’s belief in individual responsibility and in faith confirmed by good works to nurture her sense of personal worth as well as her desire to better the world. Lavinia Goodell, Mary Hall, and several of the women lawyers involved in temperance organizing, spoke and wrote about the religious beliefs that motivated their work. Other women lawyers were regular churchgoers but did not leave written records connecting their insistence on equality to particular theologies. The role of religion among these women lawyers remains understudied because belief in God was generally taken for granted.

  The nature of relationships constitutes another of the themes found in Rebels. Belva Lockwood’s family did not encourage her to go to high school, much less college, but as a young woman she married a man who was liberal and who placed few boundaries on her activities. Widowed in her twenties, she was courted by and again established a marital relationship with a man who was open to her professional ambitions. In contrast to Lockwood’s parents, William Goodell fostered his daughter Lavinia’s intellectual development. When she became an attorney, she often lived with the senior Goodells. Lavinia did not marry and eventually cared for her aging parents. In contrast, Foltz and Lockwood counted upon mothers, daughters, and female cousins to run their households while they saw clients, went to court, or traveled the lecture circuit. Other women in this story had critically important professional relationships with fathers, brothers, and husbands, apprenticing with them and joining in law partnerships.

  Aspiring women attorneys often found that a single man could be counted upon to open or to bar the door to law school, the local bar, or the legislative process by which discriminatory laws might be overturned. Men controlled these institutions and so the establishment of alliances proved critical to women lawyers’ success. In the nation’s capital, lawyer and former congressman A. G. Riddle stood out as an ally, willing to use his power for women’s political and professional rights. In Wisconsin, Judge Edward Ryan held women back with his traditional interpretation of Christian values and legal rights.

  Newspaper reporters covered the story of women’s entrance into the profession of law. Female applicants and practitioners appreciated the power of the press and cultivated positive relationships that would lead to goodwill on the part of editors and reporters, and affirmative stories. Belva Lockwood shone in her relationships with journalists. Lelia Robinson’s 1881 application for admission to the bar in Boston won favor with editors who, for the most part, wrote of her right to choose a profession. Chiding recalcitrant state supreme court justices, the editor of the Boston Globe wrote, “We have no doubt that the decision [against Robinson] is based upon the law and constitution as now read. But fifty years from now this decision will be regarded with as much curiosity as knee breeches and buckles….”6 Women’s publications, such as the American Woman Suffrage Association’s Woman’s Journal, followed the stories of these new professionals. Myra Bradwell never shied away from using the Chicago Legal News to champion the cause of a woman lawyer, often printing relevant legal briefs, and judicial opinions, in their entirety.

  These women “rebels” practiced alone or in small firms, but their lives present a rich tapestry of social, reform, and profess
ional relationships. Several of these women starred as lobbyists, cultivating support for a host of causes, including women’s rights, criminal justice reform, peace, and temperance. They also crafted relationships intended to create a women’s legal community: several women lawyers wrote articles in which they identified the first generation of woman lawyers in the United States and described their specialties; graduates and students from the University of Michigan law school founded the Equity Club, a venture encouraging women attorneys to share ideas and problems through circulating letters; and on the east and west coasts women’s law clubs were started for the purpose of education and professional networking, several named for Shakespeare’s Portia; a woman’s law school was established; and a women’s bar association was proposed.

  Women trained in the law but, like men, did not always practice law—or practice full-time. Some of the time, different considerations drove a woman’s decision not to practice. Chapter 2 sketches the nature of the profession of law prior to the entrance of women. Young male attorneys without family money, or community connections, could, and did, have problems earning a living. They supplemented their incomes by giving lectures on the law, writing, and, in a number of instances, running for local, state, and federal elective office. Despite Lockwood’s symbolic candidacies, running for political office was generally off limits to women until the 1890s.

  Men who practiced law did not need to consider the propriety of arguing in court (although not all men enjoyed trial work). Many women, however, abhorred courtroom work, thinking it indelicate, while others thrived on the challenges of argument and public notice. Foltz, McCulloch, Robinson, Lockwood, and Bittenbender accepted trials as part of their work, and developed reputations for winning.