Rebels at the Bar Read online

  By the request of women in Whitewater, twenty miles away, Goodell had prepared a petition to submit to the state legislature for a prohibitory law. In February she went to Chicago for a national temperance meeting where the question of political action and woman suffrage dominated many contentious discussions. After a full suffrage resolution was tabled, Goodell proposed that temperance women support woman suffrage because “women ought to vote on the liquor question.”73 Well-known activist Anna Dickinson backed her, and after more hot debate, Goodell’s resolution was adopted by a vote of 108 to fourteen. Keeping the Goodell family tradition alive, she was often lecturing on temperance to various groups—in October touring the circuit for eight days.

  Goodell busied herself with the preparation of wills, and smaller cases in justice and circuit court. In August she wrote Maria about a “vicious” husband case, a suit that “convinced me of the necessity of women jurors, for more reasons than one.”74 This may be a reference to the Leavenworth divorce case, argued before Judge Conger, who subsequently refused to grant the divorce, claiming that the treatment of the plaintiff, represented by Goodell, had not been “cruel and inhuman,” according to his understanding of those words.75 Goodell wrote to Sarah Thomas that the decision “surprised and outraged every unprejudiced person.” In Goodell’s view Conger’s decision “in effect [says] that a husband may abuse and ill treat his wife all his life and then turn her adrift in her old age, penniless, when he is wealthy; and the Courts will sustain him in it. It is as atrocious as the Dred Scott decision.”

  Goodell had many female clients whose legal concerns involved divorce proceedings or probate matters, and occasionally, criminal charges such as shoplifting. While she did not consider herself a woman’s lawyer, women who hoped to be lawyers were drawn to Goodell, and wrote for advice. She corresponded with a young Pennsylvania woman caught in a typical tug and pull of ambition. The would-be student told of her lawyer friends trying to dissuade her, getting up “all sorts of bugbears to frighten her off.”76 Goodell found it amusing. As time went on Lavinia became friends with Angie King and Kate Kane, each of whom studied law in Janesville, although not with Goodell, and became attorneys.

  Two weeks before Christmas, with appeals work piling up, Goodell went to Madison to attend the December 14 hearing in Ryan’s court concerning her admission. She hired I. C. Sloan, once Judge Conger’s Janesville law partner, to represent her and to make the arguments that she had written out but was not permitted to stand and make. The points were simple and compelling. First, Sloan said, Wisconsin statutes, which used the word “person,” not “men,” did not state that women could not be lawyers. Next, he argued that courts were meant to be fair and just but would not be as long as women clients could not have women attorneys available to argue for them in court. Third, Sloan told the court that women were entitled to earn a good living as attorneys. And, finally, the attorney concluded by reminding the court that some states and territories had begun to allow women to practice law. Goodell liked what she heard, but Ryan clearly did not and now she knew it. Lavinia told Maria, “The Chief Justice is an old fogey and quite opposed to me. He bristled all up when he saw me, like a hen when she sees a hawk. … If they don’t admit me … [I d]on’t much care! It will advertise me splendidly and ‘the blood of the martyrs is the seed of the church.’”77

  Although her bar status had yet to be resolved, a legal event of another sort provoked a profound change in Goodell’s life when Judge Conger appointed her to represent two criminal defendants in his court. She won the first man a reduced charge for stealing a watch, and brought in a verdict of innocent for the second defendant, also charged with theft. Goodell became “quite interested” in her second client, visiting him several times before his trial, and concluded that he was “smart, bright, intelligent and witty, with many excellent qualities.”78 He had, she wrote her sister, no parents or family, and so Goodell did not “think it so strange that he went astray.” Bringing together the sympathies of a liberal, the skills of a teacher, the beliefs of a Christian, and the aspirations of a temperance activist, Goodell contended, “[H]e can be reclaimed.”

  From November 1875, until her premature death in March 1880, the men of the Janesville (Rock County) jail became Goodell’s flock and surrogate family. In letter after letter, and in her diary, she poured out thoughts about these men—that she was proud to have the confidence of a criminal, that they could “yet” be useful men, that in helping them she was doing no more than Maria would want for her boys “if you should be taken away,” that “jails are schools of vice and crime.”79 In a very short moment, she had turned mind and heart to the cause of prison reform while acknowledging, with honesty, that she appreciated the fees paid by the county (fifteen dollars for each day she worked on a case).80

  On Christmas Day, 1875, Goodell ate oysters with her elderly parents, took care of some matters at her office, and then went to the jail with good books and magazines, beginning what would become a prison literacy program. Despite her relatively short exposure to the jailhouse men, Goodell already had a theory of penal reform. The “schools of vice and crime” could be righted, would be righted, when “women learn to assume their duties as citizens.”81 On New Year’s Day, she wrote Maria that

  the element of motherhood is the one thing needful in the administration of our public affairs. … I believe I could run that jail so as to turn out every man better than he came in. Jails and prisons could just as well be made schools of virtue as vice if people chose to have it so, and would give a very little thought to the subject.82

  She admitted to Sarah Thomas that the sheriff “had no faith in her efforts” and considered the visits a bit of a nuisance.83 She also mused about becoming a chaplain in a state’s prison: “I think that would be a good opening for women; they would do a sight better than men in such a place and have lots of influence over the criminals.”84

  Weeks later Goodell’s optimism turned to fury when, on February 16, the Ryan court finally handed down its ruling on her petition to join the bar. The three judges not only voted against her right to be admitted but postponed their decision until it was too late in the term to submit a bill of remedy to the state legislature. Goodell had planned, should her petition be denied, immediately to ask the state assembly for a law allowing women to practice law, a strategy similar to Bradwell’s and, in Washington, D.C., a tactic adopted by Belva Lockwood. Outmaneuvered, she would have to wait a year to approach the legislature.

  Goodell saw summaries of the opinion in the newspapers before reading it in full. On the basis of these sketches she wrote, “I should judge that, that august body had descended to throw dirt in a way which the lowest thief and tramp would be ashamed. If I don’t come out and give old Ryan a skinning over this, it will be because I can’t and I think I can.”85 A week later, in a letter to Sarah Thomas, she called “Old Ryan’s” opinion a “disgrace to the Bench—real Smutty.”86 During the week, however, Lavinia had reflected on her situation, and also told her cousin that she would not say anything to Ryan because “my Mrs. Burrington case” is before him and she did not wish him “to revenge himself on me by going against her.”87

  Lavinia tried to be optimistic, struggling to push aside hurt, and the loss of professional status: “Perhaps it will be the best thing that ever happened, as creating thought and discussion.”88 Still, Goodell was not naïve. At least in the near term, the denial meant that two cases she had in the supreme court would have to be “run” without her by male co-counsel. She also had the prospect of two or three cases in the next term of the circuit court, and two in justice court late in February, and admitted to not knowing what effect the decision would have on the future of her practice. “Time,” she said, “would determine.”89 She would lose the fees from the supreme court appeals but hoped that the publicity would create a reaction in her favor.

  Ryan authored the opinion of the unanimous court. His associate justices, Orsamus Cole and William Lyon,
were happy to let him write for the court and agreed, at least in public, with his conclusions.90

  Anticipating that Goodell would appeal to the legislature for redress, Ryan began by asserting the exclusive jurisdiction of courts to admit and expel individuals from the bar.91 He further argued that women would lower professional standards, that the rules guiding bar admission among Wisconsin’s circuit courts did not bind his court, nor did he find any statutory authority for the admission of females to the bar of any Wisconsin court.92 Then the author of “Mrs. Jellyby,” perhaps emboldened by Justice Bradley’s concurring opinion in Bradwell, moved to the heart of his argument: Victorian mores by which he would save Lavinia Goodell from herself, and by extension, save society.

  Ryan contended that licensing Lavinia Goodell would mean “a sweeping revolution of social order.”93 Nature had not, he argued, “tempered woman for juridical conflicts,” and he believed 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; all the unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, illegitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publications, libel and slander of sex, impotence, divorce: all the nameless catalogue of indecencies … with which the profession has to deal, and which go toward filling judicial reports which must be read for accurate knowledge of the law. … [R]everence for all womanhood would suffer in the public spectacle of woman so instructed and so engaged.94

  Ryan was thought by most lawyers to be a brilliant jurist who wrote thoughtful, well-researched opinions. In the Matter of … Miss Lavinia Goodell was an exception. Many of his arguments were not carefully researched, and his personal views influenced the screed that he wrote concerning the purity of woman. Goodell attacked its sources and reasoning as soon as a complete copy came into her hands. By the end of March, she had a lengthy brief in reply to submit to Wisconsin newspapers, Myra Bradwell’s Chicago Legal News, and the American Woman Suffrage Association’s publication, the Woman’s Journal.

  Goodell began by refuting Ryan’s contention that the admission of women to the bar would “lower the standard of professional excellence.”95 Besotted and “imbruted” attorneys of meager mental qualification and scholarship were, Goodell argued, admitted to the bar and rarely dismissed. The bar needed mature citizens of high moral repute, and a full and fair competition: “If one-half the human race is shut out from competition, just so much mental and moral ability is excluded and the standard is necessarily lowered.” Set the bar high, she suggested, let women “scale those heights,” and if they can they have the right to be admitted.

  Ryan was committed to the paramount power of courts in bar admission. Goodell destroyed his argument, showing that at the time of the adoption of Wisconsin’s constitution, the establishment of the bar was a legislative function and that the current licensing powers of the judicial branch were enumerated and limited.

  Goodell next rebutted Ryan’s assertion that the common law had always excluded women from the bar, and that the statutes of Wisconsin did not modify the common law on this question. She reminded readers that at common law,

  Woman has always been admitted to the bar, if she chose to plead there in her own behalf, as a party to the suit. Such being the common law, previous to any statutory enactment, it would seem that it would have required a statutory prohibition to have excluded her from practicing as an attorney. No such statutory prohibition appears ever to have been enacted.

  Morever, she continued, four states had ruled in favor of women’s admission to the state high court bar.

  Goodell also attacked Ryan’s labored interpretation of the legislature’s intent in opening the state university to women. She wrote that the state university admitted women, by statute, and did not bar them from applying to its law department. Law, and logic, she contended, argue that the legislature saw no reason for women graduates to be barred from actually entering the profession.

  In contesting Ryan’s last, social argument, Goodell permitted herself a touch of sarcasm: “His honor with a humility at once touching and naïve assumes that matrimony is so undesirable a state for Woman that, were she allowed freely to earn an honorable and lucrative support in any other manner, she would never enter it.” She maintained that “possibly this is so, though I confess I am slow to believe it.” She suggested that life for married women would be made more attractive “by according her fuller rights.” Goodell would have nothing of Ryan’s insistence that opening the bar would “force” women into a profession for which she is “utterly unfitted.” Rather, she maintained, “[T]he force is in refusing her.” A local paper argued that if woman’s “purity is in danger, it would be better to reconstruct the court and bar, than to exclude the women.”96

  In her last paragraphs, Goodell meditated on Ryan’s screed, offering, in its place, her eloquent understanding of law and courts:

  The learned judge declares that the legal profession “has essentially and habitually to do with all that is selfish … knavish … coarse … and brutal in human life,” forgetting that this is but the reverse side of the picture, and that the theory of law, has, and its practice should have … essentially and habitually to do with all that is unselfish and noble, honest and honorable, high and holy, refined and pure in human life. The object of law is the administration of justice, and the righting of wrongs, and carries with it a consideration of very many of the most-weighty and important questions affecting the welfare of humanity. … In the consideration of these questions, the peculiar qualities of womanhood which the honorable court sets forth … are needed no less than the sterner and hardier traits of manhood.

  Goodell returned to everyday life while her brief circulated in the media. She relaxed by reading the British novelists George Eliot and Anne Manning.97 She anticipated winning state legislators to the cause of women attorneys at the next session. The Ryan court decision limited her practice and earnings, but Goodell did not permit it to drive her from the profession, or otherwise restrict her life. She corresponded with suffrage leaders like Lucy Stone, went east for a temperance convention, and followed the lives of her “prison boys.” She started jailhouse prayer meetings and a jailhouse Bible class, and kept her law practice active. Her work remained general law—replevy (recovery of goods), deeds, wills, loans and collections, divorce, mortgage complaints, habeas corpus, chancery letters, and, whenever possible, criminal defense. She was pleased that, in a sign of changing times, Kate Kane, who had come to Janesville, perhaps after hearing about Goodell, had been taken on as an apprentice by A. A. Jackson.98

  On March 22, 1877, Wisconsin enacted a law prohibiting denial of admission to the bar on account of sex. Goodell had drafted the bill, “induced” local attorneys to sign a petition in favor of it, and then worked with Janesville state assemblyman (and speaker of the assembly) John B. Cassoday to win its passage.99 Jubilant over her victory, she puckishly related to Maria that “Judge Ryan takes it quite hard that I beat him. … One man who argued against my bill, used it as an argument that the passage of the bill would probably be a death blow to Judge Ryan who was in feeble health. They passed it notwithstanding but he still survives!”100

  Goodell’s merriment softened the pain of her letter’s opening words. The previous summer she had been diagnosed with an ovarian tumor and, although in constant pain, delayed surgery because of her mother’s declining health. Now she gave Maria the “dreaded” news, adding, “[D]o not feel blue. … I have hope and courage, and feel perfectly reconciled to any fate.”101 A short time before she had also revealed her illness to cousin Sarah Thomas, admitting the possibility that she might not get better: “Of course I believe in God; but I have been thinking of Chloe’s remark in Uncle Tom’s Cabin [that] ‘The Lord lets drefful things happen sometimes.’”102

  Maria later wrote that “the dark clouds a
round Lavinia got darker.”103 Her sister finally underwent an operation in the late spring of 1877. She recovered slowly and began taking on legal work as her health permitted, as well as lobbying temperance issues. In November Goodell had an interview with the governor where she argued that the “community were responsible for most of the crime, when they licensed saloons.” He replied that licensing was “a difficult question.”104 Lavinia repeated to Maria, and others, this belief that society was responsible for crime. She singled out liquor and parents “who fail to train their children wisely,” whether because they were intemperate, severe, or indulgent, and continued to maintain that giving women the ballot “would be a powerful weapon” in diminishing crime—“women,” she insisted, “should make a dive for the ballot rather than shrinking from it.”105 Her views corresponded to those of national temperance leader Frances Willard, who was now espousing the “home protection ballot.”

  Early in 1878 Goodell’s parents died, and she underwent yet another operation. Again, after recovering, she resumed her law practice. In a New Year’s letter to Sarah Thomas, Lavinia described how she had rearranged the furniture in the Goodell’s front parlor to better suit her while at work.106 She was making more time for her jailhouse men who, after the death of the elder Goodells, became even more important to her. She explained to Maria, “As I have no boys of my own to bring up, it is my duty to do what I can for the boys of other women.”107 And, indeed, she allowed the young men of the jail to call her “mother.”108

  In January 1879 Goodell sent Sarah Thomas a letter that revealed the tension involved in wanting to help another woman lawyer while not necessarily liking her. She wrote that Miss Kane and Angie King had just been admitted to the bar. She then confided to her cousin that “King is going to open an office, but Kane is still drifting along in a vagabond way. She does not seem to know how to plan for the future. If only she suited me I would open an office and take her in partner and give her a start; but she will do so many things that I don’t like.”109 After complaining that Kane had been at the Janesville jail with several reformers, where she spoke “sneeringly” of temperance and religion, Lavinia asked her cousin, “Is it for such as these that I went thro’ the agony of breaking my way into a new profession for women?” She concluded on a note of dismissal, writing that “Miss K. means well enough, but she certainly lacks judgment, principle, and refinement. I am getting to like her less and less, and I am sorry for it, for she has some desirable qualities. Angie has a good deal more sense, & I hope she will do well.”