IX.

WOMAN IN LAW.

BY

ADA M. BITTENBENDER.

THE history of various ages and nations, since the days of the prophetess Deborah, who filled the office of judge among the children of Israel (Judges iv. 4), records the names of women distinguished for their legal learning, some of whom were also successful advocates. Among the latter we content ourselves with mentioning Aspasia, who pleaded causes in the Athenian forum, and Amenia Sentia and 'Hortensia in the Roman forum. But, alas, the right of Roman women to follow the profession of advocate was taken away in consequence of the obnoxious conduct of Calphurnia, who, from "excess of boldness" and "by reason of making the tribunals resound with howlings uncommon in the forum," says Velerius Maximus, was forbidden to plead. (Velerius Maximus, Hist. lib. viii. ch. iii.) The law, made to meet the especial case of Calphurnia, ultimately, "under the influences of the anti-feministic tendencies" of the period, was converted into a general one. In its wording the law sets forth that the original reason of woman's exclusion "rested solely on the doings of Caphrania." (Lex. I, sec. 5, Dig. iii. i.)

This exclusion furnished a precedent for other nations which, in the course of time, was followed. Dr. Louis Frank, of the Faculty of Law at Bologna, in a pamphlet entitled "La Femme Avocat," translated by Mary A. Greene, LL.B., of Boston, and published in 1889 in serial form in the Chicago Law Times, in speaking on this point, says:

"Without taking time to discuss the rudimentary law of the ancient German Colonies, we recall only that institution of Germanic origin, the vogt or advocatus, whose care it was to represent every woman at the court of the suzerain, in judicial acts and debates. . The ancient precedents were conceived and

established in a spirit which was extremely favorable to woman. There is not a trace in them of the privileges of masculinity. They allowed woman_to be a witness, a surety, an attorney, a judge, an arbitrator. Later, under the influence of the canon law, and in the early renaissance of juridical study, under the action of the schools of Roman law, a reaction made itself felt against the rights of women, and the old disabilities of Roman legislation reappeared and became a part of the legal institutions."

Further on, Dr. Frank says:

"The forwardness of Calphurnia appeared to all the ancient jurists a peremptory reason for excluding women from the forum."

From among the following: "Boutillier tells us that a woman could not hold the office of attorney or of advocate. For know, that a woman, in whatever state she may be, married or unmarried, cannot be received as procurator for any person whatever. For she was forbidden (to do) any act of procuration because of Calphurnia, who considered herself wiser than any one else; she could not restrain herself, and was continually running to the Judge without respect for formalities, in order to influence him against his opinion.' (Somme Rural, Edit. Mace, Paris, 1603, L. i. tit. x. p. 45-) Further on, designating those who may be advocates in court and who not,' Boutillier cites as incapable minors, the deaf, the blind, clerks, sergeants, and women. 'For women are excluded because of their forwardness, like Calphurnia, who could never endure that her side should be beaten nor that the judge should decide against her, without speaking forwardly to the judge or to the other party.' (Id. L. ii. tit. ii. p. 674.) . . . . In Germany as in France, the inferiority of woman was justified upon the same grounds. 'No woman,' says the Miroir de Souabe, can be guardian of herself nor plead in court, nor do it for another, nor make complaint against another, without an advocate. They lost this through a gentlewoman named Carfurna, who behaved foolishly in Rome before the ruler.'" (Miroir de Souabe, T. ii. ch. xxiv., Lassberg, 245.)

his citations to prove this assertion we extract

....

The prohibition against women acting as advocates, or barristers, the latter being the term used to designate the office in England, wherever adopted, has continued in force to the present time outside of the United States of America. In England women are permitted to qualify for and practice as attorneys

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at law and solicitors in chancery, but have not been permitted to become barristers and exercise the rights of that rank in the prosecution of their cases. Were it not for the Calphurnian decree, they still would be ineligible because of being denied admission to the four Inns of Court, where barristers are trained and ranked. These Inns of Court are voluntary societies from whose power to reject applications for membership there is no apnual

The common law of England becoming the law of this country, its women were thought also ineligible to admission to the bar, and but one woman, so far as we know, attempted to test the matter until within the last quarter of a century. This exception was a very notable one in colonial days. It was the case of Margaret Brent, spinster and gentlewoman. She and her sister Mary, kinswomen of the first Lord Proprietary and Governor of Maryland, came to the Province in 1638, "bringing over nine colonists, five men and four women. They took up manors, imported more settlers, and managed their affairs with masculine ability." So says William Hand Browne in his "History of a Palatinate." The Governor, Leonard Calvert, died the 9th of June, 1647, leaving Mistress Brent his sole executrix. At the time of his death, he was attorney for his brother, Cecilius Calvert, second Lord Baltimore, the Lord Proprietary. Mistress Brent succeeded him as attorney for his-lordship. Her right to act in this capacity, which she at first claimed "on the strength of her appointment as executrix," was questioned in the provincial court, where she had occasion frequently to appear in regard to his lordship's "private estate and transactions in the Province." The Court ordered that she" should be received as his lordship's attorney." question came up in court on the 3d day of January, 1648, of which record was made as follows:

"This day the question was moved in court whether or noe, Mr. Leon. Calvert (remayning his LP's sole attorney within this Province before his death, and then dying) the said Mr. Calvert's administrator was to be received for his LP's Attorney within this Province untill such time as his Lordship had made a new substitution, or that some other remayning uppon the present Commision were arrived into the Province. The Govcor demanding Mr. Brent's opinion upon the same Quere. Hee answered that he did conceive that the administrator opt to be looked uppon as attorney both for recovering of rits into the estate and paying of dew debts out of the estate and taking care for the estate's preservation: But not further,

until his Lordship shall substitute some other as aforesaid. And thereuppon the Governor concurred. It was ordered that the administrator of Mr. Leon Calvert aforesaid should be received as his LP's Attorney to the intents above." (Archives of Maryland, vol. iv. p. 358.)

The provincial court records show that Mistress Brent not only frequently appeared in court as his lordship's attorney, in which capacity she continued to act for some years, but also in prosecuting and defending causes as attorney for her brother, Capt. Giles Brent, and in regard to her personal affairs, and as executrix of Leonard Calvert's estate (the record calls her "administrator"; she was appointed by the testator to execute his will). There is no record of any objection being made to her practicing as attorney on account of her sex. At that time the provincial court at St. Mary's "was the chief judicial body in the Province, being not only a court of first instance for all matters civil, criminal, and testamentary for the city and county of St. Mary's, but having also appellate jurisdiction over the county courts. It was composed of the Governor as presiding judge, and one or more of the members of the council asassociate judges." (Archives of Maryland, vol. iv. preface.) Unmindful of the words "but not further" in the opinion, Mistress Brent asked for voice and vote in the General Assembly on account of her position as his lordship's attorney. This request was denied. Whether her sex entered into the denial is a question without solution. The Assembly proceedings for January 21, 1648, make mention of the fact in these words:

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'Came Mistress Margarett Brent and requested to have vote in the howse for herselfe and voyce allso, for that att the last court, 3d Jan., it was ordered that the said Mistress Brent was to be looked uppon and received as his Lps Attorney. The Gov denyed that the said Mistress Brent should have any vote in the howse. And the said Mistress Brent protested against all proceedings in this present Assembly, unlesse shee may be present and have vote as aforesaid." (Archives of Maryland, vol. i. p. 215).

The first woman since the days of Mistress Brent to ask for and obtain admission to the bar of this country was Arabella A. Mansfield of Mt. Pleasant, Iowa. She studied in a law office and was admitted to the Iowa bar in June, 1869, under a statute providing only for admission of "white male citizens." The examining committee in its report, which is of record,

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"Your committee have examined the provisions of section. 2700 of chapter 114, of the Revision of 1860, concerning the qualifications of attorneys and counselors in this State [section 2700 provided for the admission of "white male persons.' ED., but in considering the section in connection with division 3 of section 29, chapter 3 of the Revision, on construction of statutes [section 29 provided that "words importing the masculine gender only may be extended to females." ED.], we feel justified in recommending to the court that construction which we deem authorized, not only by the language of the law itself, but by the demands and necessities of the present time and occasion. Your committee take unusual pleasure in recommending the admission of Mrs. Mansfield, not only because she is the first lady who has applied for this authority in this State, but because in her examination she has given the very best rebuke possible to the imputation that ladies cannot qualify for the practice of law."

At the time of Mrs. Mansfield's debut into the profession without opposition, Myra Bradwell, of Chicago, having studied law under the instruction of her husband, ex-Judge James B. Bradwell, was unsuccessfully knocking at the door of the Supreme Court of Illinois for admission. To give an understanding of the case, and line of argument used in denying her application, we extract from the opinion of the Court, delivered by Mr. Justice Lawrence, the following:

"Mrs. Myra Bradwell applied for a license as an attorney at law, presenting the ordinary certificates of character and qualifications. The license was refused, and it was stated, as a sufficient reason, that under the decisions of this court, the applicant, as a married woman, would be bound neither by her express contracts, nor by those implied contracts, which it is the policy of the law to create between attorney and client.

"Since the announcement of our decision, the applicant has filed a printed argument, in which her right to a license is earnestly and ably maintained. Of the qualifications of the applicant we have no doubt, and we put our decision in writing. in order that she, or other persons interested, may bring the question before the next Legislature. . . . . It is to be remembered that at the time the statute was enacted [the statute under which admission was sought, which provided that "no person shall be permitted to practice as an attorney or counsel lor at law," etc. ED.] we had, by express provision, adopted the common law of England, and, with three exceptions, the statutes of that country passed prior to the fourth year of James