Rebels at the Bar Read online

  Having invested Bradwell family capital in a printing plant, presses, and binding equipment, Myra made the decision to use the machinery’s “down” time to branch out. She began by producing bound pamphlets of recent Illinois statutes. Efficient and accurate, the business attracted the attention of officials and lawyers in other states. From them came pleas “imploring” Bradwell to publish the statutes and judicial decisions of their states.25 The publication of law books followed, then legal forms—leases, wills, and bankruptcy petitions, and, finally, lawyers’ briefs. The company thrived and Bradwell enjoyed considerable wealth, including an impressive home on the shores of Lake Michigan. Where Lydia Pickham, her contemporary, built an empire marketing a “Vegetable Compound” for “woman problems,” and later, Madame C. J. Walker fashioned a national corporation out of the sales of women’s beauty products, Bradwell had followed her business instincts to create a nationally respected conglomerate in the male world of government and lawyers.

  Although the Chicago Legal News has been called Myra’s “alter ego,” she did initially shelter readers from some, albeit not all, of her political views.26 By 1870, however, the dramatic events of her personal confrontation with state and federal courts as she sought to become a licensed attorney, as well as the success of the paper, made this both impossible and unnecessary.

  Myra Bradwell belonged to a small cohort of smart, plucky women who, at the end of the Civil War, sought training to become America’s first women lawyers. Their motives for seeking a legal education varied. Some of these women wanted and needed to make a living. Others, buoyed by the women’s movement, wished to make the case for women’s equal talents and opportunities. Yet others were reform activists who recognized that an understanding of legal codes, legislatures, and judicial opinions would facilitate their work. Easterner Mary A. Greene enrolled in the law program at Boston University in 1886 after realizing that she was “woefully ignorant of the very first principles of our Common law” and therefore at risk in future legal and business dealings.27

  Phoebe Couzins was one of the very first women lawyers in the United States. She rose to prominence, however, as a woman suffrage and anti-Prohibition lecturer, and seldom practiced law. (Collection of Jill Norgren.)

  In 1869 Lemma Barkaloo and Phoebe Couzins were admitted to the law department at Washington University in St. Louis. They were among the very first women to enroll in an American law program. A Brooklyn, New York, native, Barkaloo had been denied admission to Columbia University’s law school. Her application caused influential Columbia trustee George Templeton Strong to write in his diary, “No woman shall degrade herself by practicing law … if I can save her.”28 Paralleling Barkaloo’s and Couzins’s success in winning law school admission in St. Louis, it is likely that African American teacher and journalist Mary Ann Shadd Cary enrolled in 1869 at Howard Law School in Washington, D.C., making her, also, one the country’s very first women law school students.29 In 1868 Ada Kepley entered the law program at Union College (later Northwestern University). She graduated in 1870 (law programs were often only two years long in the nineteenth century), becoming the first woman in the United States to receive a law degree. In that year, in Ann Arbor, the University of Michigan opened its law school for the first time to women. Sarah Killgore, who had been in law school in Illinois with Kepley, took advantage of this reform to transfer to the University of Michigan. She graduated in March 1871, at about the same time as Couzins received her degree from Washington University. Schools opened to women for many reasons: an influential trustee or faculty member, the need for funds, lawsuits, or a sense of fairness.

  Other women in this pioneering group, however, emulated Myra Bradwell by reading law in a professional’s office rather than attending law school. Alta Hulett was an intellectually precocious teenage teacher in Rockford, Illinois, when William Lathrop, a prominent lawyer, opened his office to her. She passed the state bar examination at the age of seventeen and was admitted to the bar in 1872. Arabella (Belle) Babb Mansfield also chose this route.30

  After graduating from Iowa Wesleyan College, in the autumn of 1867 Mansfield joined her brother in Mount Pleasant (Iowa) at the firm of H. & R. Ambler, where they both read law. Belle had studied under Henry Ambler in college, where she had taken the valedictorian’s prize. Ambler, and later her brother, mentored Belle. They supported her ambition to become an attorney, as did Belle’s husband, John, after their June 1868 marriage. Mount Pleasant, a town so saturated in women’s rights lectures that the Des Moines Register called it an “orator-mill,” could not do enough to accommodate Mansfield’s professional ambitions.31 In June 1869 attorneys George B. Corkhill and Edwin A. VanCise examined Belle for bar membership, pleased to be part of a history-making event. They were Radical Republican legal activists interested in using law to improve the rights of women and African Americans. They reported results that were “most eminently satisfactory” and recommended her for a license, commenting that Mrs. Mansfield “has given the very best rebuke possible to the imputation that ladies cannot qualify themselves for the practice of law.”32 District court judge Francis Springer, a women’s rights supporter, liberally interpreted a provision of the Iowa code restricting the practice of law to qualified “white males” and admitted Mansfield to the bar. Springer drew upon a general construction statute to hold (in an unwritten opinion) that “the affirmative declaration that male persons may be admitted is not an applied denial to the rights of females.”33 His legal theory was widely reported in Iowa as well as in eastern, and suffrage, newspapers, encouraging women law graduates for whom bar admission was not to be so easily obtained.34

  In this early group, not everyone practiced law. Kepley, without being a member of the bar, assisted for several years in her husband’s law office but by the 1880s was spending most of her time on temperance and suffrage reform. Phoebe Couzins, an early member of Stanton and Anthony’s National Woman Suffrage Association, immediately after graduating took to the lecture circuit, where she earned a national reputation speaking about woman suffrage and temperance. She never practiced law; inexplicably, neither did Belle Mansfield, who also became deeply involved in suffrage activities.35 Once married, Sarah Kilgore Wertman did back-office real estate law until her children were born. She returned to practice when they reached their teens. Lemma Barkaloo was admitted to the Missouri bar in March 1870 (without graduating from law school), tried one case late that spring, and tragically succumbed to typhoid fever. Alta Hulett, like Barkaloo, followed a career in law. Myra Bradwell noted her rapid success in the Chicago Legal News, courtroom victories that included using the Married Women’s Property Act to protect women’s property. In 1877, Bradwell sadly announced Hulett’s death at the age of twenty-three.36

  The saga of Bradwell’s own effort to become a member of the Illinois bar began auspiciously on August 2, 1869, when, at the age of thirty-eight, she passed the required examination with high honors. The Bradwell children were eleven and thirteen, and James was returning to his private law practice. Myra offered no comment on her application to be licensed, nor did she need to. Seeking bar admission was a logical petition for a person who had read law for many years, achieved a high pass on her examination, lobbied for various legal reforms, and published a legal newspaper.37 For Bradwell, bar admission would be a personal and political victory, reinforcing women in their professional ambitions and quest for rights.

  Bradwell quickly discovered that for every Francis Springer anxious to help women with their professional aspirations dozens of others, like George Templeton Strong, stood ready to stop them. Of course Manfield’s personal success in Iowa had heartened Bradwell, but she was sufficiently wary of what she might face in Illinois that her application for a license to the state supreme court included a brief normally not required of applicants, an argument in support of her right to bar admission.

  Bradwell’s intuition was correct. The application failed, with the members of the Illinois Supreme Court
invoking the common-law doctrine of coverture (by which upon marriage a woman’s legal rights were folded into those of her husband) to justify the denial. Bradwell immediately printed the court’s opinion, sent to her as a letter, in her newspaper. The judges had written that Bradwell could not carry out proper attorney-client business because of the disabilities imposed upon her as a married woman (they wrote this despite the special charter that Bradwell had obtained earlier from the legislature permitting her to sign contracts in her own name). They held themselves powerless to grant her a license but suggested that a change in the state’s statutory law could trump the problematic common law. Bradwell told her readers that the court was relying upon outdated legal principles that had been invalidated by state legislation enacted in 1861 and 1869.38

  Undeterred, Bradwell filed an appeal with the Illinois court, including a brief and an affidavit that would establish grounds for an appeal to the U.S. Supreme Court should that become necessary. She argued generally that social conditions had changed and that the law needed to respond to changes in education and employment. More specifically, she claimed that the denial of her application on the basis of her status as a married woman violated citizenship rights established by the Fourteenth Amendment as well as the 1866 U.S. Civil Rights Act. She also argued that the Illinois court had violated the privileges and immunities of her state citizenship (as a former citizen of Vermont) under the fourth article of the U.S. Constitution. The “right to follow a professional pursuit under the law” was, she wrote, one of these “protected privileges.”39

  On February 5, 1870, state chief justice Charles B. Lawrence denied Bradwell’s appeal. Reduced to its essence, the court’s opinion held that the Illinois legislature had not mandated that women were eligible for bar status because women were not equal with men, and were designed by God for domestic responsibilities.

  Bradwell’s appeal challenged women’s exclusion from the practice of law. Members of the court, however, along with Bradwell herself, understood that the fundamental, highly sensitive issue was the question of women’s full and equal citizenship. The judges made this quite clear when they wrote that to grant Bradwell a law license would mean that “every civil office in this State may be filled with women … that women should be made governors, judges and sheriffs. This we are not yet prepared to hold.”40

  Bradwell viewed the decision as annihilating the political rights of Illinois women and said so in her CLN editorial of February 5, 1870.41 Citizenship and political rights were very much on Bradwell’s mind. On February 3, two days before the Illinois court’s second ruling against her, the nation learned that the ratification of the Fifteenth Amendment to the U.S. Constitution had been completed. Explicitly enfranchising only African American men, the amendment assailed the sense of justice of many women who had hoped this final post-Reconstruction change in constitutional law would grant universal suffrage. Rights leader Elizabeth Cady Stanton had long insisted that ratification of the amendment without universal suffrage would establish an “aristocracy of sex.”42 Refusing to leave the determination of women’s voting rights to the states, she and other activists, including Isabella Hooker of the famous Beecher family, had already begun speaking of the need for a sixteenth—woman suffrage—amendment, a strategy that antagonized an important part of the women’s movement that had accepted a state-by-state approach to winning rights.

  Bradwell made the decision to appeal to the United States Supreme Court in this contentious political climate. On its face, Bradwell v. Illinois challenged the authority of a state to deny a woman what Bradwell claimed was her Fourteenth Amendment citizen’s privilege to pursue a legal career.43 The failure of the women’s movement to win the explicit inclusion of women’s rights in the Fourteenth and Fifteenth Amendments also led Bradwell to hope that her case might result in a sweeping judicial decision supporting women’s status as full citizens, with all of the rights and privileges of that status. She believed this status had been established implicitly under the Fourteen Amendment and the 1866 Civil Rights Act.

  Bradwell was one of several activists gamely making this argument and devising strategy to make it a reality. Suffrage advocates Virginia and Francis Minor originated the theory in 1869. They argued that women were citizens of the United States, and of the state of their residence, by virtue of the opening words of the Fourteenth Amendment: “All persons born or naturalized in the United States … are citizens of the United States and of the State wherein they reside.”

  Soon-to-be presidential candidate Victoria Woodhull brought this idea to the public in a November 19, 1870 article in her newspaper, Woodhull & Claflin’s Weekly, followed by a well-publicized January 1871 appearance before the combined judiciary committees of the U.S. House of Representatives and Senate.44 Elizabeth Cady Stanton declared that the Minor/Woodhull argument amounted to a “new departure,” radically changing the “manner of agitation.”45 The supporters of the “New Departure,” appreciating congressional disinterest in taking up the question of a sixteenth amendment, called for a strategy of federal enabling legislation in support of Minor’s theory and Supreme Court decisions built on Minor’s reasoning. Bradwell’s appeal was to be one of those high court cases.

  Woman suffrage advocate Matthew Carpenter, U.S. senator from Wisconsin, agreed to take Myra’s appeal—without fees or costs. He was politically prominent, an expert on the U.S. Constitution, and well thought of as a courtroom advocate. He was also a pragmatist who, hoping for a favorable decision from the high court, re-fashioned the foundational claims of the case to distinguish the right to practice law (a civil right) from the right to suffrage (a political right). He argued that the denial of membership in the state bar solely on the grounds of sex was a violation of the privileges of citizenship guaranteed as a federal right under the Fourteenth Amendment. In steering clear of any Fourteenth Amendment equal protection claim, he hoped to keep the justices’ minds off the question of suffrage. When she found out what Carpenter had done, a furious Susan B. Anthony wrote Bradwell that his Supreme Court argument was “a school boy pettifogging speech—wholly without a basic principle.”46

  Carpenter was no schoolboy. Bradwell had approached him to handle her appeal because of his support for women’s rights and his reputation as a smart constitutional lawyer. His professional prominence was considerable. While working her case, Carpenter was also handling a Fourteenth Amendment–based challenge, the Slaughter-House Cases, to the creation of state-government-chartered business monopolies. Carpenter argued Bradwell and the Slaughter-House Cases (on the side of the chartered slaughter-house company) two weeks apart in the winter of 1873.47 On April 14 the high court handed Carpenter and his Slaughter-House clients a narrow five-to-four victory. A day later the court ruled in Bradwell, and Myra learned that her attorney’s cautious approach had not served her cause. The justices had voted against her appeal, eight to one.

  Both cases raised the question of the right to work as a federal right immune from state regulation or restriction. In Slaughter-House the majority ruled that the Fourteenth Amendment’s privileges clause did not insulate the right to labor from a state’s right to protect the health and safety of the public, that is, to exercise its police powers. Drawing upon its decision in Slaughter-House, and in a stunning defeat for women’s rights, the next day the Bradwell majority upheld the action of the Illinois Supreme Court on the same grounds, stating that Myra had no federal citizen’s right to practice law free from state regulation.

  Writing for the majority, Justice Samuel F. Miller said that “the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred [by the Fourteenth Amendment] for its protection to the Federal Government.”48 The decision signaled the Court’s restrictive reading of the Fourteenth Amendment’s privileges clause and meant that women would have to fight state by state to win the privilege of applying to the bar.

  Miller’s opinion con
tained no reference to the law of coverture or the social relations of the sexes. In contrast, Justice Joseph P. Bradley wrote a concurring opinion in which he distinguished his support for a man’s right to work unfettered by unreasonable regulation (a “valuable” and “fundamental” right), his position in Slaughter-House, from that of a woman. In an opinion that would echo through judicial chambers for years, Bradley argued that women were not covered by his position in Slaughter-House. Drawing upon the common law of coverture, and social observation, Bradley wrote that the idea of a woman adopting a “distinct and independent career from that of her husband” was repugnant to the idea of the “harmony” of the institution of the family.49 “Man is, or should be,” he insisted, “woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”50 While Miller’s majority opinion was received soberly and in silence, lawyers in the courtroom laughed out loud as Justice Bradley read his theory of separate spheres.51

  To some men Bradley was out of step with changes in post–Civil War America. Bradwell’s and Ada Kepley’s early efforts to join the bar already had received encouragement from the editors of various law periodicals, including the American Law Review and the Albany Law Journal.52 Even in Bradwell’s home state, pragmatic politics were resulting in new opportunities for women. While Myra’s case was on appeal, she and James, Kepley and her husband, and the precocious Alta Hulett drafted a broadly worded bill, submitted to the Illinois legislature, to prohibit the use of sex to bar women from any occupation. The legislature responded to their lobbying, and the public’s support, by passing an amended bill that allowed women the right to work in most fields, and to practice law, exempting entrance into the military, road construction, and service on juries.53 Myra was a force behind the successful bill but, willful and principled about her own situation, refused to reapply for bar admission, maintaining that the Illinois Supreme Court had been mistaken in turning her down. She asked the court to admit her on the basis of her original application, which it would not do.54 Prejudice—Bradwell called it “deep-rooted”—remained. After Hulett’s 1873 admission to the Illinois bar one of the state court judges remarked that “if she were his daughter, he would disinherit her.”55 In the same year, however, the lawmakers conferred on Illinois women a limited right to run for public office, passing legislation permitting single and married women, twenty-one and older, to hold any office under the school laws of the state. The following November nine women were elected county superintendents of instruction. This mirrored reform in other parts of the country. In 1873 several women were elected to the Boston school board. Challenged on the grounds of their sex, they successfully lobbied the state legislature for a law permitting elected women to serve on school boards.56