Rebels at the Bar Read online

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  Seneca Falls was a call to action. The plan devised in July 1848 proposed that there be more conventions, traveling agents employed to talk up the cause, petitioning, and a campaign to win over ministers and newspaper editors.

  The creation of “an equal station for women” meant the reshaping of society with a new balance among marriage, work, and governance. The vision was radical and, not surprisingly, immediately after Seneca Falls the press pilloried the women leaders, describing them as “unwomanly” and “unnatural.”14 Elsewhere, public name calling demeaned outspoken ladies as “personally repulsive.”15 One messenger of reform, who dared to link the future success of temperance to woman suffrage, was attacked in a newspaper editorial as a woman who labored “under feelings of strong hatred toward male men, the effect we assume of jealousy and neglect.”16 While the movement had some supporters in the press and among community leaders, clergy-woman Antoinette Brown’s experience of being shouted down was typical of what women endured. Rotten eggs and soft tomatoes were also common weapons of insult.

  The work of building a movement benefited from women’s energy, intelligence, and determination, but simultaneously bent under prevailing disabilities. Deeply engrained deferential behavior made outreach and networking a challenge, as did the lack of funds for the most basic organizational tasks. An equal station demanded that ideas of obedience and reserve be rethought. Movement leaders were disputing core orthodoxies at a time when advice books told women to be domestic, pious, and submissive, to “avoid a controversial spirit, to repress a harsh answer.”17 Newcomers did not make lightly the decision to join their ranks and to dispute the “inmost fitness of things.”18

  Aspirations, personal slights, and inspirational talks brought girls and women to the movement. Susan B. Anthony said that she became involved after reading reports of activist Lucy Stone’s 1850 speech at the first national women’s rights convention. Before an audience of one thousand in Worcester, Massachusetts, speaking in favor of women’s property rights, Stone insisted,

  [My sisters and I] want to be something more than the appendages of Society; we want that Woman should be the coequal and help-meet of Man in all the interest and perils and enjoyments of human life. We want that she should attain to the development of her nature and womanhood; we want that when she dies, it may not be written on her gravestone that she was the “relict” (widow) of somebody.19

  A year later abolitionist reformer Wendell Phillips, a prominent male advocate of women’s rights, challenged Americans not to be content with the status quo, and to open its institutions to women:

  Throw open the doors of Congress; throw open those court-houses; throw wide open the doors of your colleges, and give [women] the same opportunity for culture that men have, and let the results prove what their capacity and intellect really are. When woman has enjoyed for as many centuries as we have the aid of books, the discipline of life, and the stimulus of fame, it will be time to begin the discussion of those questions: “What is the intellect of woman?” “Is it equal to that of man?” Till then, all such discussion is mere beating of the air.20

  When not being hectored, Antoinette Brown urged women to enter all of the traditionally male professions, including the ministry. The Bible, she lectured, did not forbid it. Along with other women leaders, she raised questions about the ability of a man-made law to represent and protect women. Slights and ambition brought upstate New York teacher and later attorney Belva Bennett Lockwood into the circle. She never worked for a school board willing to match her salary to that paid to male instructors. The discrimination continued even after she reminded board officials that she was a widow with a small child to support. Never altogether content to be a teacher, Lockwood quietly played with the then-absurd idea of becoming an attorney. By 1858 she was ready to take up Susan B. Anthony’s proposal that women teachers agitate for equal professional status and pay. In public speeches, Lockwood demonstrated the speaking skills she would later bring to local and federal courtrooms.

  Debate about the need for a national woman’s rights association began early in the 1850s at the national conventions where Stone, Phillips, and many others spoke. The issue of creating an association at first was sidestepped. These conventions, nevertheless, provided spirited forums for the education of a public still both naïve and at odds over questions of divorce for the wives of alcoholics and abusers, equal inheritance and child custody rights, and trials before a jury of female peers, along with the better-known issues of suffrage, education, and property rights.

  The beginning of the Civil War in 1861 quieted talk of women’s rights as reformers adopted a dignified silence. Only after Lee’s surrender to Grant at Appomattox in April of 1865 were women activists free to pick up the threads of their earlier arguments.

  In 1865 most reformers expected that the energy and strategic know-how of the abolitionist and women’s movement would be focused upon promoting national legislation, or a constitutional amendment, barring the use of race and sex as a qualification for voting. For more than two decades members of the antislavery and women’s movement had worked together, sharing leaders and the common language of natural rights. However, only weeks after the victory of the North, Elizabeth Cady Stanton learned that prominent advocates of African American citizenship and voting rights planned to abandon the fight to enfranchise women, limiting their campaign to black manhood suffrage. Wendell Phillips, president of the Anti-Slavery Society, said that Reconstruction politics could not bear the weight of women’s aspirations, declaring that the “hour belongs to the negro.”21 Stanton, a long-time friend, fired off a letter in which she asked Phillips, “Do you believe the African race is composed entirely of males?”22

  A fight to define the terms of this suffrage-reform debate enveloped the civil rights community. In the course of debate the embryonic women’s movement split in two. Lucy Stone, Julia Ward Howe, and Henry Blackwell formed the American Woman Suffrage Association (AWSA), which supported ratification of the Fifteenth Amendment even if it excluded women. Stanton, her close friend Susan B. Anthony, and other proponents of an immediate universal or woman suffrage amendment to the U.S. Constitution created the opposing National Woman Suffrage Association (NWSA).

  The fledgling National Woman Suffrage Association held its first annual convention in 1870 in Washington, D.C.’s Lincoln Hall. Belva Lockwood, who had moved to Washington at the end of the Civil War, was one of the activists who joined the Nationals and came to the meeting. She supported immediate voting rights for freedmen and women. The National also attracted Lockwood because its founding members championed equal educational and employment opportunities for women, and for more than twenty years had lobbied for the reform of laws that gave husbands absolute control of their wives’ assets and earning. She was typical of the activists who wanted to build more than a suffrage movement. As Lockwood later told an interviewer, she had first taken an interest in woman suffrage because of the “inequality that prevailed between the payment of men and women for identical work.”23

  The 1870 NWSA meeting was a morale-boosting occasion that, to some, must have resembled a revival jamboree. Stanton opened the convention with a speech that rejoiced in the decision of the Wyoming territorial legislature granting women the right to vote. She said that the hour of universal woman suffrage throughout the United States was near, and read a letter of support from the English philosopher John Stuart Mill. Delegate Pauline Davis delivered a lengthy history of the women’s rights movement in the United States, Britain, and parts of Europe. Primed with history and exhortation, the delegates listened to Anthony call for the approval of four resolutions. The first requested that members of Congress submit a woman suffrage amendment to the states. A second resolution asked that Congress strike the word “male” from the federal laws governing the District of Columbia, while a third urged officials to enfranchise the women of the Utah Territory as a “safe, sure, and swift means to abolish the polygamy of
that Territory.”24 A final resolution petitioned Congress to amend federal law to provide equal pay for women government employees. All of the motions received approval. It pleased Lockwood that she was not alone in wanting to lobby for equal educational, employment, and property rights.25 For Lockwood, the women’s movement would always be about the naturally complementary issues of economic and political rights.

  Movement leaders were keeping an approving eye on Lockwood, who, in applying to law school, had challenged what Catherine Beecher called the “boundaries of feminine modesty.” Lockwood, and the other members of the first generation of women who sought to open the profession of law, understood the far-reaching power of men but believed, nevertheless, in the possibility of a just society governed by natural law and reform ideals.

  2

  White Knights and Legal Knaves

  [T]here is a suit before the Court which was commenced nearly twenty years ago; in which from thirty to forty counsel have been known to appear at one time; in which costs have been incurred to the amount of seventy thousand pounds; which is a friendly suit; and which is … no nearer to its termination now than when it was begun.

  —Charles Dickens, 1853

  WHEN, AFTER THE CIVIL WAR, a few brave women insisted upon the opportunity to become lawyers, they entered a profession with a decidedly mixed reputation, one populated solely by male practitioners who were responsible for the nature of their profession. By the late 1860s in the United States, significant economic and political changes were in place. Members of the legal profession, which had served rural colonial America and then a small agrarian nation, now understood that they must be capable of addressing the issues created by urbanism, industrial capitalism, and the building of transportation and communication infrastructures. Solo practitioners maintained legal practices in towns and cities, serving more traditional clients, but in the post-war years, law became an increasingly tiered profession, with an ever greater range of fees and status.

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  Stretching back to seventeenth-century colonial America, citizens had searched for “justice beyond law”—justice without lawyers or courts.1 Many of the earliest colonists argued that law, and its servant-lawyers, breached social harmony by promoting contention and un-Christian, self-aggrandizing individualism. Some wags whispered that lawyers were only slightly better than the biblical serpent, and efforts were made in some communities to forbid the practice of law.2 Puritans contended that “the administration of justice should be based on individual conscience and the word of God rather than legal precedents.”3 Questions of law were presented as theological in nature, rather than legal, and not requiring the counsel of common-law attorneys.4 In The Scarlet Letter adulteress Hester Prynne is examined by a tribunal of magistrates, religious and political leaders charged with enforcing God’s will. Lawyers play no role in Hawthorne’s drama, set in 1640s colonial Boston, although the crime of which Hester stood accused carried a possible sentence of death.

  Despite deep mistrust of the profession, the number of lawyers increased in the eighteenth century. So, however, did the tongue lashings. Near the end of the Revolutionary War naturalized American Hector St. John de Crèvecoeur cautioned that lawyers were “plants that will grow in any soil that is cultivated by the hands of others; and when once they have taken root, they will extinguish every other vegetable that grows around them.”5 He singled out lawyers for the fortunes they acquired from the misfortunes of others. Writer Washington Irving was no less caustic. Satirizing secular New Amsterdam in his biting, 1809 burlesque account A History of New York, Irving described the unchecked presence of base lawyers—“caitiff scouts”—who, like Crèvecoeur’s “plants,” infested the profession and caused the courts to be “constantly crowded with petty, vexatious, and disgraceful suits.”6

  The commentaries were cutting, and after the Revolutionary War calls for abolition of the legal profession continued. Critics wanted “to simplify and Americanize the common law” and to democratize the system.7 The training of attorneys in English law lent credence to the idea that lawyers were “plotting the downfall of republicanism,” while some newspapers voiced the complaint that professions were “out of place in a republican society.”8 Constitutionalism and commerce, however, ultimately provided a safe haven for lawyers, a shelter in which to repair their standing and create a more respectable future. It helped that patriot-essayist Thomas Paine proclaimed that in America, “the Law is King.”9

  In his 1830s travels through the United States, Frenchman Alexis de Tocqueville also praised the rule of law and argued that in this new republic, “[T]he aristocracy … is on the bench and at the bar.”10 He argued that the “authority [Americans] have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy.”11 He thought that the study of law cultivated “certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render [lawyers] very hostile to the revolutionary spirit and the unreflecting passions of the multitude.”12 Tocqueville suggested that the profession protected its position by having become “masters of a science which is necessary, but which is not very generally known.”13

  Other nineteenth-century commentators were more frank, and critical. The owner of the New-Hampshire Patriot, Issac Hill, lashed out at attorneys, writing that when they moved into towns where peace, quiet, and the absence of litigation had been the norm, “uproar and confusion” suddenly reigned “without any other visible means than the introduction of a lawyer.”14 In an 1830 address to the students of Waterville College, lawyer and novelist John Neal fulminated against the law’s uncodified contradictions and incoherencies, which he thought invited manipulation by “scoundrel pettifogger[s].” With less flattery than Tocqueville, he called lawyers “the unanointed rulers of the land,” again expressing the view that lawyers formed an exclusive group, out of place in a republican society—an aristocracy, whose work was often inconsistent with the values of a free government.15 Jacksonian reformer Frederick Robinson summed up the anti-monopolists’ attack on the profession, writing that while lawyers attempted “the appearance of Officers,” they were nothing more than followers of a trade that “ought to be left open to competition.”16

  Tocqueville toured the United States during a period of profound change. In 1826, the elderly Thomas Jefferson spoke of feeling lost in a nation that “seemed overrun” by business and banking.17 A rural economy was yielding to a market revolution in which property rights were becoming a more varied and compelling commodity. Tocqueville observed a nation increasingly divided into city and country, manufacturing and farming, a society whose fault lines were more and more drawn around disparities of wealth.18 He witnessed economic and political forces pushing the United States toward a system of capitalism in which sellers, lenders, and employers ruled, often at the expense of buyers, borrowers, and employees.19 Lawyers “were the shock troops of capitalism,” and Tocqueville felt it.20

  The rank assumed by an individual lawyer in this changing world depended upon many factors, including place of practice, wit, ambition, and birth. Beginning in the 1790s, when the rules of business and corporate affairs were altered to permit merchants to testify to the facts or intention of a contract, businessmen who were parties to an action, individuals who had previously favored arbitration because they could tell their side of the dispute, turned to lawyers and courts to draw up their contracts and rule on their quarrels.21 Meeting them on common ground and seeking fresh opportunities for the legal profession, between 1790 and the 1820s lawyers and judges adopted a friendlier posture toward commercial law, shaping legal doctrine that assisted commercial interests. Quite quickly, “the intellectual foundation was laid for an alliance between common lawyers and commercial interests.”22 Retainers increased, as did damage judgments. In America’s great port cities, marine insurance litigation
became an important part of commercial practice, making men like Brockholst Livingston and Alexander Hamilton wealthy.23

  These were years when legislators, an increasing number of whom were lawyers, finally confronted the rather chaotic state of law in the United States. They were citizens of a newly independent nation. They had the task of fashioning civil and criminal legal systems based upon ideas suited to their hearts and minds as Americans rather than subjects of the British Crown. There is little disagreement among historians that as the fledgling nation produced laws in written form, the greatest number addressed the question of regulating property, and did so in such a manner as to make property inviolable.24 One modern observer has written that “law, once conceived of as … paternalistic and, above all, a paramount expression of the moral sense of the community, had come to be thought of as facilitative of individual desires and … the existing organization of economic and political power.”25 In small towns people “knew that it was lawyers who served the outsiders reshaping, remaking, and taking over their lives and livelihoods.”26