Rebels at the Bar Read online

  Thus, an additional theme of this book explores how women interpreted professional opportunities when faced with discrimination and insufficient business or, on the other hand, competing personal views as to whether it was better to serve society as a reformer or as a practicing attorney. Locked out of the judiciary, elective office, corporate law, and diplomacy, early women lawyers were inventive, creative, and thoughtful. Rebuffed by the Illinois bar, Myra Bradwell built a highly successful legal publishing business. Clara Foltz practiced law while fighting fiercely for the institution of an office of public defender. Women began to teach law at institutions of learning in the 1890s shortly after some of their female colleagues turned to writing law books.

  Lelia Robinson was one of several women lawyers concerned with the rights of women. She and other of her colleagues held special office hours for women too poor to hire an attorney. In 1886 Robinson wrote Law Made Easy: A Book for the People, directed at men and women who needed guidance but could not pay a counselor. Three years later she published The Law of Husband and Wife. For Popular Use. A decade later, her friend Mary A. Greene wrote The Woman’s Manual of Law. Letters from the Equity Club, however, show that women lawyers were not of one mind on the question of helping other women obtain their rights. They were not all what today we might call feminist lawyers.

  Chapters 3 through 8 present the biographies of eight “rebels.” The lives of Bradwell, Goodell, Lockwood, and Foltz are described in individual chapters. The biographies of Mary Hall and Catharine Waugh McCulloch, however, as well as of Lelia Robinson and Mary Greene, are paired because they raise intersecting professional questions, and because the materials available about their work are limited. African American Charlotte E. Ray, the first woman admitted to the District of Columbia bar, belongs in this story of “rebels.” In 1872, after graduating from Howard Law School, Ray began to practice law in the nation’s capital. Her name appears as counsel in one or two cases in the docket books of the local courts. Her race, however, combined with her sex, made it impossible for her to make a living as an attorney. Ray quit the law and moved to New York City, where she taught school.7 Women in the East, Midwest, and West figure in the early history of the legal profession; southern women lawyers come into the story later, and are discussed in the epilogue.

  Chapter 9 builds upon these biographies, interweaving the stories of the eight women with those of other women attorneys of the period. From this wider perspective, the chapter appraises law as a woman’s enterprise in the late nineteenth century.

  * * *

  This book grew out of a lecture I delivered on October 27, 2008, at the invitation of the U. S. Supreme Court Historical Society, the Historical Society of the Courts of the State of New York, and Friends of John Jay Homestead. I wish to thank these organizations, along with United States Supreme Court justice Ruth Bader Ginsburg, and Chief Judge (retired) Judith Kaye of the New York Court of Appeals, each of whom offered comments at this talk, held at the Association of the Bar of the City of New York.

  Cecelia Cancellaro, my agent, showed enthusiasm for the project, encouraging me to write a book from my original lecture. Many people helped me as I pursued research and writing. Philippa Strum provided friendship and encouragement. She improved the manuscript by reading it, and posing questions. Barbara Allen Babcock and John Phillip Reid graciously reviewed individual chapters. Felice Batlan, Wendy Chmielewski, Elisabeth Gitter, Louise W. Knight, Miriam Levin, and Erika Wayne are some of the scholars who answered my queries, helping to make the book richer in detail, and more accurate. Anonymous reviewers gave careful readings to my proposal, and to the manuscript, improving the final structure and content of the book. Archivists and staff at research collections were generous with their help. These institutions include American University’s Washington College of Law, the Hutchins Library at Berea College, the Chapin Library of Rare Books at Williams College, the Evanston (Ill.) History Center, the M. E. Grenander Department of Special Collections and Archives of the University of Albany Libraries, the New York State Historical Association Library, the Ohio Historical Society, the Prints and Photographs Division of the Library of Congress, the Richmond (Conn.) Memorial Library, the Schlesinger Library, the Collection of the Supreme Court of the United States, and the Wisconsin Historical Society.

  Members of New York’s Women Writing Women’s Lives seminar extended much appreciated friendship and professional advice, as did Sheila Cole and Serena Nanda.

  Articles and books have been written about this first generation of women lawyers by a number of authors who are cited in my end-notes and bibliography. I would be remiss, however, if the extraordinary work of the Stanford University Law School Women’s Legal History Biography Project was not singled out. Professors Babcock and Wayne and their students have produced papers, available at the project’s online website, that have created much new knowledge about the first generation of women lawyers, as well as later generations.

  I am grateful to New York University Press for publishing Rebels, and to all of its staff. In particular, I was honored to have Deborah Gershenowitz edit this book, helping me, as she did with my biography of Belva Lockwood, to shape the stories of these women into a powerful narrative. Thanks also to Constance Grady, her assistant, and to copyeditor Emily Wright and managing editor Despina Papazoglou Gimbel, who, again, have been loving friends of my work.

  Friends and family listened patiently to my endless talk about these smart, gutsy women. To all of you, especially my husband, Ralph, I can only say that “thank you” does not begin to cover my feelings of gratitude.

  1

  The Women’s War

  Let the woman learn in silence with all submissiveness. I do not suffer a woman to teach, nor to usurp authority over men, but to be in silence.

  —1 Timothy 2:11-12

  Man for the field and woman for the hearth:

  Man for the sword and for the needle she:

  Man with the head and woman with the heart:

  Man to command and woman to obey;

  All else confusion.

  —Alfred, Lord Tennyson, 1847

  ON JUNE 18, 1860, Reverend Theophilus Packard committed his wife Elizabeth to the Illinois Hospital for the Insane. A staunch Calvinist, Theophilus held that his wife’s refusal to accept the orthodoxy of his religious views, her refusal to echo his thinking, spoke unequivocally of a deranged mind. Theophilus acted quite legally. Illinois law permitted a husband (but not a wife) to authorize the involuntary commitment of a spouse. Elizabeth Packard, forty-four, the mother of their six children, and completely sane, had not given her consent and was literally dragged off. Elizabeth spent three years imprisoned in the state insane asylum as punishment for her refusal to bend to her husband’s commands. She won her release only in 1863 when her eldest son reached the age of majority and asserted legal standing to petition for her freedom. Months later Theophilus again, stubbornly, locked Elizabeth in a room whose windows had been nailed shut. This time she was freed only after a court trial in which a jury declared her sane.1

  Elizabeth Packard’s fate was the consequence of male action. In addition to her husband’s, the decisions of fathers, brothers, sons, male legislators, sheriffs, and doctors contributed to her imprisonment. Even the final—felicitous—ruling of a local jury declaring her sane was a judgment of men. At every step, Elizabeth Packard contended with norms and laws established and carried out by men.

  In the eighteenth and nineteenth centuries the power of men was so far reaching that god-fearing Abigail Adams entreated her husband John, later to become the second president of the United States, to join with others at the Continental Congress to shape a code of laws that would expand the rights of women. “Remember the Ladies,” she wrote in the spring of 1776, “and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands.”2

  The Revolutionary War created opportunities for women to participate in the figh
t against England. However, neither the Declaration of Independence nor the United States Constitution took note of women’s rights. Despite this silence, in 1798 writer Judith Sargent Murray felt confident about the future of her sex, arguing that female rights were now understood and the new nation was now ready “to do justice to women.”3 While it was true that white women shared in many of society’s fundamental liberties—including the right to speak, worship, assemble, petition, and protest—custom, and the legal doctrine of coverture (under which a married woman lost much of her individual legal identity to her husband), worked against all women in significant ways: by law, married women could not own property or dispute abusive husbands; they could not sign legal documents, enter into contract, sue in court, or be sued; they could not vote (a short-lived experiment in New Jersey ended in 1807) or serve on juries, and would have been belittled—or worse—had they attempted to run for political office. Before and after the Revolutionary War, they were celebrated as mothers of the republic. In this important domestic and civic role they were expected to uphold the ideals of republicanism—liberty, inalienable rights, honesty, sovereignty—to counsel husbands, and to educate their sons and daughters in the virtues of republican citizenship.4 Yet in the first decades of the nineteenth century, despite the war for liberty and independence, in the world of politics traditional male power prevailed and social custom did not change. The nastiness of political party conflict, the expansion of male but not female suffrage, and the rise of deal making in smoky back rooms conspired to marginalize women, at least where electoral politics were concerned. Men counseled politically inclined women to become peacemaking negotiators—“non-partisan patriots”—rather than full-fledged players.5

  Women were quieted, but this did not end the debate that had flowered during the Revolutionary period about women’s role in society. Ironically, as men pushed women away from electoral politics, nineteenth-century improvements in transportation, increased literacy, and urbanization encouraged new ideas about what was right, proper, and possible, opening other roles to women. In the early republic, the daughters of republican mothers, ordinary women, stepped out of their homes and into their communities ready to expand the ways in which they improved the lives of their children, their communities, and themselves. This activism was led by a handful of courageous women who proved to be exceptionally able theoreticians, agitators, and organizers: African American abolitionist and lecturer Maria Stewart; Quaker minister Lucretia Mott; abolitionists Angelina and Sarah Grimké; intellectual Margaret Fuller; writer and social reformer Frances Wright. Each asserted the right of respectable women to talk in public even when what they had to say was controversial. They insisted that all women had the right and duty, as equals to men, to speak on matters of public importance. Sarah Grimké argued that God had created woman equal to man.6 Fuller made the radical claim that men “could never reach [their] true proportions while [woman] remained in any wise shorn of hers.”7

  In the 1840s, in new charitable societies, benevolent organizations, and nascent social movements, women joined forces, sometimes with men, to promote temperance, Sabbath observation, and social purity as well as the abolition of slavery. Many women had come to believe that society could be reformed by renewed religious faith coupled with worldly good works. They claimed the right to control and to change society, and to define the idea, and practice, of fairness and justice. Many, like Elizabeth Packard, turned away from Calvinism and were sustained by the optimism and liberalism of new scriptural interpretations. The Methodists’ belief in individual responsibility, divine love freely bestowed upon humankind, and faith confirmed by good works nurtured many a woman’s sense of her own worth and desire to improve the world. Unitarianism emphasized the innate goodness of humans, in contradiction to the Calvinist creed of original sin. The 1827 break of Hicksite Quakers from the conservative core of that religion drew the interest of sisters Sarah and Angelina Grimké, who were active in anti-slavery and women’s rights politics.

  Not surprisingly, taking power out of the “hands of the Husbands” did not come easily. Many women labored under the belief that their sex was governed by emotion rather than reason, and that women were, by God’s design, inferior to men. Although they were confident in their homes, self-assurance in public was something women had to, and did gradually, learn. A slow but dramatic transformation in women’s civic life began in the 1840s and 1850s, aided by increased access to education and interest in reform causes, among them abolition and temperance. In this coming out, activist women concluded that the perfection of society, including greater equality for women, required their participation in political, civic, and, for some, even professional life. Barred from voting, women nonetheless evaluated political parties and their candidates, and began to investigate the decisions of local tax, zoning, and school boards. Stepping forward even more publicly, the most courageous of these mid-century leaders traveled to conventions and state legislatures where they lobbied for an end to slavery, funds for schools, shorter work weeks, and laws to expand married women’s rights to property.

  The boldest reformers called for the public discussion of women’s rights. Although only one of several local gatherings in this period, the 1848 convention at Seneca Falls, New York emerged as the moment of epiphany and public notice. Meeting on two warm July days, participants drew up, debated, and endorsed a Declaration of Sentiments and Resolutions. The short document took the natural-law language of the Declaration of Independence as its model, thus emphasizing the idea of a universal, unalterable law derived from nature and nature’s God, bestowing equal and independent rights to all human beings. The Declaration of Sentiments described women as “aggrieved, oppressed, and fraudulently deprived of their most sacred rights.”8

  The facts submitted “to a candid world” by convention leaders Lucretia Mott, Elizabeth Cady Stanton, and members of the local M’Clintock family, among others, spelled out women’s civic, social, economic, and legal disabilities. These included the denial of the right to vote, forced submission to laws they did not make, a double standard in matters of morality, and limited access to education and to well-paying employment. In tough language the authors attacked man’s desire to destroy woman’s confidence in her own powers, “to lessen her self-respect, and to make her willing to lead a dependent and abject life.” The authors took particular care to spell out the abuse of women in marriage, condemning a system of law that gave husbands, like Theophilus Packard, the power to deprive their wives of liberty, property, and wages. One hundred women and men signed the Seneca Falls Declaration. They demanded that women “have immediate admission to all the rights and privileges which belong to them as citizens of these United States.”

  Women’s right to education, fair wages, and a place in the professional life of the country came up five times in this short document. In 1848 the United States was an agricultural society, a way of life increasingly affected by the growth of cities and the expansion of manufacturing industries. Girls and women farmed, served—on farms or in urban settings—and sewed. Women nursed and served local and far-flung communities as midwives, attending a majority of births. With increasing frequency, single young women found employment as factory workers. Some fell into prostitution.

  The authors of the Seneca Falls Declaration laid out the stark reality of women’s position in the professions, saying simply that their presence was unknown because men had closed to them “all the avenues to wealth and distinction.” Communities hired women, at low pay, as schoolteachers, but in 1848 educated women could expect no other professional opportunities: “As a teacher of theology, medicine, or law, she is not known.”

  Elizabeth Blackwell broke the mold in the field of medicine a year after the Seneca Falls meeting. Rejected from every medical school in Philadelphia and New York City, as well as Harvard, Yale, and Bowdoin, Blackwell had been accepted at Geneva College in New York State, and upon the award of her medical degree in 1849 became the first wom
an physician in the United States. A biographer describes the difficult decade that followed as one in which the new doctor was “barred from practice in city dispensaries and hospitals, ignored by medical colleagues, and insultingly attacked in anonymous letters.”9

  At the time of the meeting at Seneca Falls, the profession of law was completely closed to women: no woman taught, mentored, or practiced legal work in the United States.

  Apart from the Society of Friends, mainstream religious denominations similarly refused to open any calling to the ministry to women. The Quakers had recognized women as ministers since the seventeenth century, but Quaker ministers were called by God, and not ordained. In other mainstream denominations, women wishing the status and authority that accompanied ordination fought deep, longstanding prejudice. Antoinette Brown, later the wife of Elizabeth Blackwell’s brother, Samuel, was one of the few to try, and to succeed. In 1847 as a student at Oberlin College, Brown transformed the religious precociousness of her childhood into the insistent intention to take a theological degree. Family and friends, previously pleased by her desire for an education, recoiled. She reported being reasoned with, pleaded with, and told that “masculine headship everywhere was held to be indispensable to morality, and grounded in the inmost fitness of things.”10 Still, she persisted, and finished the program, but was not allowed to graduate. Taking matters into her own hands, Brown arranged professional pulpit engagements and established a successful career as a lecturer who spoke on women’s rights, temperance, and abolition. During her speaking engagements fellow clergymen often attempted to shout her down. Brown’s spirit was strong, and in 1853 she found a Congregational church whose members understood her vocational calling. In that year she became the first American woman ordained as a minister in the church of a recognized denomination.

  In contrast, by the 1840s, the profession of teaching had opened to women, following the enrollment of an ever-growing number of female students who would serve the nation, and commerce, with their literacy and school-instilled discipline. Educator Catharine Beecher, one of the several illustrious Beecher siblings, argued that in addition to their intellect, women instructors would bring a moral sensibility to the nation’s classrooms. They would, she said, serve their communities as “a new class of moral guardians.”11 As early as 1830 Beecher wrote that women could achieve the “influence, respectability and independence” inherent in a teaching career without stepping outside “the prescribed boundaries of feminine modesty.”12 School boards quickly discovered that district tax rates could be kept low if they practiced wage discrimination. They commonly offered women instructors half the salary paid to men. Educated women made their pact with the devil and took these teaching positions, being welcome in no other profession.13