Mr. Story, in his work upon "Agency," and Mr. Bouvier, in his "Inst.i.tutes," in treating of the different kinds of agents, both speak first of attorneys-at-law. All the elementary writers upon law tell us that attorneys are agents. Without reference to our recent statutes modifying the common law, we will open the books and see who may be attorneys or agents.
II. WHO MAY BE ATTORNEYS OR AGENTS.--Mr. Story, in his work on Agency, says, sec. 7:
Secondly, who are capable of becoming agents? And here it may be stated that there are few persons who are excluded from acting as agents, or from exercising an authority delegated to them by others. Therefore, it is by no means necessary for a person to be _sui juris_ or capable of acting in his or her own right, in order to qualify himself or herself to act for others. Thus, for example, monks, infants, _femes covert_, persons attainted, outlawed, or excommunicated villains, and aliens, may be agents for others.... A _feme covert_ may be an attorney of another, to make livery to her husband upon a feoffment; and a husband may take such livery to his wife, although they are generally deemed but one person in law. She may also act as agent or otherwise of her own husband, and as such, with his consent, bind him by her contract, or other act; or she may act as the agent of another, in a contract, with her own husband.
III. UNDER THE COMMON LAW.--In c.o.x _vs._ Kitchin, 1 Bos. & Pul., 438, where a _feme covert_ represented herself falsely to the tradesman to be a _feme sole_, and obtained goods on credit, it was held that she rendered herself personally responsible.
In Derry _vs._ Mazarine, 1 Ld. Raymond, 147, it was held that the wife of an alien, who was doing business in her own name, in England, was liable as a _feme sole_. In Hauptman _vs._ Catlin, 20 N. Y., 248, the Court of Appeals says:
Even before the late statute respecting married women, they were regarded as _femes sole_ in respect to their separate property, and were as to such property liable on their contracts respecting the same, to the same extent and as though they were not under the disability of coverture. It was held by Lord Mansfield and his a.s.sociates, in Corbett _vs._ Poelnitz, 1 T. R., 5, that if a husband and wife choose to separate, and the husband allows the wife a separate maintenance, she may contract and be sued as though she were unmarried, and may be held to bail and imprisoned on a _ca. sa._ without her husband. The court made this innovation on the ground that "the times alter new customs, and new manners arise, which require new exceptions, and a different application of the general rule.
IV. UNDER THE RECENT STATUTES.--In Conway _vs._ Smith and Wife, 13 Wis., 125, the court held that "the statute gives to married women, as necessarily incidental to the power of holding property to their own use, the power of making all contracts necessary or convenient to its beneficial enjoyment, and such contracts are to be regarded as valid in law, and may be enforced by legal remedies." Cole, J., dissenting.
In Barton _vs._ Beer, 35 Barbour, 81, the court, in treating of the liability of a married woman, says:
If she acts as a _feme sole_, she ought, in justice to the public, to be subjected to all the duties and liabilities of a _feme sole_.
In Emerson _vs._ Clayton, 32 Ill., 493, this honorable court held, that a married woman might bring replevin in her own name, for her separate property, against a third party, or even against her own husband, and that the act designed to make and did make a radical and thorough change in the condition of a _feme covert_; that she is to be regarded as unmarried, so far as her separate property is concerned.
In Pomeroy _vs._ Manhattan Life Insurance Co., 40 Ill., 398, Walker, C. J., in delivering the opinion of the court, says:
Under the statute she is ent.i.tled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers. If it gives the rights of a sole ownership, it must impose the liabilities incident to such an act.
In Brownell _vs._ Dixon, 39 Ill., 207. this court not only held, under the act of 1861, that a married woman possessed of separate property might employ "an agent to transact her business", but that she might employ her own husband as such agent.
Relying upon the doctrine laid down in this case, we insist that the power "to employ an agent" carries with it the liability to pay such an agent a reasonable compensation for his services; and that if a married woman employs a man to work on her farm for one day, and agrees to give him two dollars therefor, and fails so to do, that a fair construction of the act of 1861 would allow him to sue her before a justice of the peace, and not drive him to the expense of filing a bill in chancery that would amount to more than a denial of justice.
Now, if under the Act of 1861 she can employ an agent to transact her business, we insist under the Act of 1869, giving the wife her own earnings, and the rights to sue for the same in her own name, free from her husband, that she has the right to be employed as an agent, or attorney, or physician, if she is capable, and to agree to do the duties of her profession. It would almost seem that this question is answered by the following extract from the opinion of this honorable court, as delivered by Mr. Justice Lawrence, in Carpenter _vs._ Mitch.e.l.l, 2 _Legal News_, 44:
It may be said that a married woman can not adequately enjoy her separate property unless she can make contracts in regard to it. This is true, and hence her power to make contracts, so far as may be necessary for the use and enjoyment of her property, must be regarded as resulting by implication from the statute. If she owns houses she must be permitted to contract for their repair or rental. If she owns a farm she must be permitted to bargain for its cultivation, and to dispose of its products. We give these as ill.u.s.trations of the power of contracting which is fairly implied in the law.
It is true, in this opinion the learned Judge confines his remarks strictly to the contracts of the wife made in relation to her separate property, and not in relation to general trade. This case arose before the pa.s.sage of the Act of 1869. The right of a married woman to bring a suit in her own name is a necessary incident to the law. (Cole _vs._ Van Riper, 1 _Legal News_, 41.)
V. THE TRADES AND PROFESSIONS OPEN TO WOMEN.--The doors of many of our universities and law schools are now open to women upon an equality with men. The Government of the United States has employed women in many of its departments, and appointed many, both single and married, to office. Almost every large city in the Union has its regularly-admitted female physicians. The law schools of the nation have now many women in regular attendance, fitting themselves to perform the duties of the profession. The bar itself is not without its women lawyers, both single and married.
Mrs. Arabella A. Mansfield, wife of Prof. J. M. Mansfield, of Mount Pleasant, Iowa, was admitted to the bar of Iowa, upon the unanimous pet.i.tion of the attorneys of that place, after a very careful examination, not only of the applicant, but of the statutes regulating the admission of attorneys.
The statute of Iowa provides that "any white male person, twenty-one years of age, who is an inhabitant of this State," and who satisfies the court, "that he possesses the requisite learning, and that he is of good moral character, may, by such court, be licensed to practice in all the courts of the State, upon taking the usual oath of office."
The clause construing statutes is as follows:
Words importing the singular number only, may be extended to several persons or things; and words importing the plural number only may be applied to one person, or thing; and words importing the masculine gender only may be extended to females.
In Mrs. Mansfield"s case, the court not only held that she could be admitted, notwithstanding the fact that she was a married woman, under the clause of the statute giving a construction to the masculine noun "male," and p.r.o.noun "he"; but that the affirmative declaration, that male persons may be admitted, is not an implied denial of the right to females. We know of no instance in the United States, where a woman, whether married or single, who has complied with the statutes of the State in which she lived and applied for admission, that the proper court has refused to grant her license.
VI. HOW THE LEGISLATURE HAVE REGARDED YOUR PEt.i.tIONER.--It has been held, in England, that a wife who does business in her own name, with either the express or implied consent of her husband, should be treated as a _feme sole_, and be sued as such; and, with such consent, could be an administrator, executor, or guardian, in England or America.
The Legislature has, in repeated instances, acknowledged the capability and capacity of your pet.i.tioner to transact business, by providing that the _Chicago Legal News_, edited by her, and containing the decisions rendered by your honors, should be received in evidence in all the courts of this State, and in the following extract from the charter of the Chicago Legal News Company:
And all the real and personal estate of said Myra Bradwell shall be liable for the debts of said company, contracted while she is a stockholder therein, and all stock of said company owned by her, and the earnings thereof, shall be her sole and separate property, the same as if she were an unmarried woman; and she shall have the same right to hold any office or offices in said company, or transact any of its business that a _feme sole_ would have.--_Legal News_, Edition Laws of 1869, p. 93. Sec. 4, p. 93.
Your pet.i.tioner claims that a married woman is not to be cla.s.sed with an infant since the pa.s.sage of the Act of 1869. A married woman may sue in her own name for her earnings, an infant can not. A married woman, if an attorney, could be committed for contempt of court the same as any other attorney. If she should collect money and refuse to pay it over, she could be sued for it the same as if she were single. A married woman is liable at law for all torts committed by her, unless done under the real or implied coercion of her husband. Having received a license to practice law as an attorney, and having acted as such, she would be estopped from saying she was not liable as an attorney upon any contract made by her in that capacity.
The fees that a married woman receives for her services as an attorney are just as much her earnings as the dollar that a sewing-woman receives for her day"s work, and are just as much protected by the Act of 1869. Is it for the court to say, in advance, that it will not admit a married woman? Should she be admitted, and fail to perform her duty, or to comply with all her contracts as an attorney, could not the court, upon application, strike her name from the roll, or inflict more summary punishment?
Your pet.i.tioner has complied with all the provisions of the statutes of the State regulating the admission of attorneys, and asks, as a matter of right and justice, standing as she does upon the law of the land, that she be admitted.
Not a line of written law, or a single decision in our State, can be found disqualifying a married woman from acting as an attorney. This honorable court can send me from its bar, and prevent me from practicing as an attorney, and it is of small consequence; but if, in so doing, your honors say to me: "You can not receive a license to practice as an attorney-at-law in the courts of this State upon the ground that you would not be bound by the obligations necessary to be a.s.sumed, where the relation of attorney and client shall exist, by reason of the disability imposed by your married condition"; you, in my judgment, in striking me down, strike a blow at the rights of every married woman in the great State of Illinois who is dependent on her labor for support, and say to her, you can not enter into the smallest contract in relation to your earnings or separate property, that can be enforced against you in a court of law.
This result can, in my opinion, only be reached by disregarding the liberal statutes of our State, pa.s.sed for the sole purpose of extending the rights of married women, and forever removing from our law, relating to their power to contract in regard to their earnings and property, the fossil foot-prints of the feudal system, and following the strictest rules of the common law.
Lord Mansfield, notwithstanding the fact that slaves had been held, bought and sold for years in the streets of London, declared that the moment a slave touched British soil his shackles fell. The same n.o.ble lord held that a married woman might under certain circ.u.mstances, contract, and sue, and be sued at law, as a single woman, upon the ground that, the reason of the law ceasing, the law itself must cease; and that, as the usages of society alter, the law must adapt itself to the various situations of mankind. Mr. Justice Buller, in speaking of this decision years afterward, declared that "the points there decided were founded in good sense, and adapted to the transactions, the understanding, and the welfare of mankind."
Apply this reasoning in our State, now that the Legislature has removed every claim that the husband had, under the common law, upon the property of the wife, except his life estate in her hands, which only commences with her death, and all difficulty is removed, and the case is clear.
MYRA BRADWELL.
Applicant, with a view of placing herself in a position to obtain the benefit of the provisions of the Const.i.tution of the United States, and the Civil Rights Bill, applicable to her case, on the second day of January, 1870, filed the following affidavit and points:
_In the Supreme Court of Illinois, Third Grand Division--September Term, 1869. [In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law]--State of Illinois, County of Cook, ss.:_ Myra Bradwell, being duly sworn, doth depose and say that she was born in Manchester, in the State of Vermont, and that she was a citizen of said State last named, that she is now a citizen of the United States; that she is and has been for many years last past a resident of Chicago, in said State of Illinois, and further deponent says not.
MYRA BRADWELL.
Subscribed and sworn to before me this 31st day of December, A.D.
1869.
E. B. PAYNE, Notary Public. [Seal.]
And now again comes the said Myra Bradwell, and files the following additional points:
VII. Your pet.i.tioner claims under the XIV. Amendment to the Const.i.tution of the United States, and the act commonly known as the "Civil Rights Bill," the "full and equal benefit of all laws and proceedings for the security of person and property," and the right to exercise and follow the profession of an attorney-at-law upon the same terms, conditions, and restrictions as are applied to and imposed upon every other citizen of the State of Illinois, and none other.
And that having complied with all the laws of the State, and the rules and regulations of this honorable court, for the admission of attorneys, it is contrary to the true intent and meaning of said Amendment and said "Civil Rights Bill," for your pet.i.tioner to be refused a license to practice law, upon the sole ground of her "married condition."
VIII. And your pet.i.tioner further claims, that having been born in the State of Vermont, and having been a citizen of the State last named, and of the United States, and having removed to the State of Illinois, where she has resided for many years, that under the second section of the IV. Article of the Const.i.tution of the United States, which is in these words, "The citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States," she has guaranteed to her the privileges and immunities which every other citizen of the State of Illinois has, among which may be named the protection of the Government, the right to the enjoyment of life and liberty, to acquire and possess property, to reside in the State, to carry on trade, and the right to follow any professional pursuit under the laws of the State, which must work equally upon all the citizens of the State, and that under this section of the Const.i.tution she has a right to receive a license to practice law upon the same terms and conditions as the most favored citizen of the State of Illinois.
(People _vs._ Washington, 36 California R., 662. Corfield _vs._ Coryell, 4 Washington C. R., 381.)
MYRA BRADWELL.
On last week the court filed an opinion denying the application, for a very carefully prepared copy of which we are indebted to Mr. Freeman:
OPINION OF THE COURT DENYING THE APPLICATION.
[_In the matter of the application of Mrs. Myra Bradwell for a license to practice as an Attorney-at-Law._] OPINION OF THE COURT DELIVERED BY MR. JUSTICE LAWRENCE.--At the last term of the court 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 ample 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.
The applicant, in her printed argument, combats the decision of the court in the case of Carpenter _vs._ Mitch.e.l.l, June term, 1869, in which we held a married woman was not bound by contracts having no relation to her own property. We are not inclined to go over again the grounds of that decision. It was the result of a good deal of deliberation and discussion in our council chamber, and the confidence of the present members of this court in its correctness can not easily be shaken. We are in accord with all the courts in this country which have had occasion to pa.s.s upon a similar question, the Supreme Court of Wisconsin in Conway _vs._ Smith, 13 Wis., 125, differing from us only on the minor point as to whether, in regard to contracts concerning the separate property of married women, the law side of the court would take jurisdiction.