On July 21st, 1871, Ellen Rand Van Valkenburg, of Santa Cruz, California, having applied for registration and been refused, brought suit against Albert Brown, of Brown County, who acted as Register upon this occasion. Although later suits exceeded this in interest it was notable for being the first decision under the new amendments.[167]
September 16, 1871, suit was brought by Carrie S. Burnham, an unmarried woman, residing in Philadelphia. She was duly a.s.sessed by the canva.s.sers of the Fourteenth Ward of that city as a resident of the Eleventh Election District of that ward. Two days afterwards she paid her tax, and her name was registered on the canva.s.sers" printed list of legal voters in that division. Having complied with all the laws regulating suffrage in Pennsylvania, she presented her ballot in legal form at the proper time and place at the general election, but her vote was refused. Her argument in the Court of Common Pleas and the opinion of the judge, will be given in the Pennsylvania chapter.
Mrs. Catharine V. Waite, of Illinois, also inst.i.tuted suit for the refusal of her vote proffered in the fall of 1871, and received an adverse decision, a report of which will be found in the Illinois chapter.
Two years previous to these suits for the recognition of the political rights of women a contest of a different character was commenced in Illinois. Mrs. Myra Bradwell, editor of the Chicago _Legal News_, in September, 1869, having pa.s.sed the examination, and received the required certificate of qualification, applied for admission to the bar of that State, which was refused by its Supreme court, on the ground that she was a woman. She made this denial of her civil rights a test case by bringing a writ of error against the State of Illinois in the Supreme Court of the United States. We copy from the _Legal News_ of February 5, 1870:
A WOMAN CAN NOT PRACTICE LAW OR HOLD ANY OFFICE IN ILLINOIS.
_Full Report of the Proceedings in the Supreme Court upon the Application of Myra Bradwell to be admitted to the Bar._
LICENSING ATTORNEYS.--The following extract from rule 76 shows what is required by the Supreme Court of applicants for admission to the bar:
_Ordered_, That rules 69 and 70 be rescinded, and applicants for license to practice law in the courts of this State, on presenting to any member of this court a certificate of qualification, signed by the Circuit Judge and State"s Attorney of the circuit in which the applicant may reside, setting forth that the applicant has been examined and found qualified, will be a sufficient voucher on which to grant a license.
CERTIFICATE OF ADMISSION.--The undersigned have examined Mrs.
Myra Bradwell as to her qualifications to enter upon the practice of the law, and finding her qualified therefor, recommended that a license should be issued to her.
E. S. WILLIAMS, _Judge Seventh Judicial Circuit_.
CHARLES H. REED, _State"s Attorney_.
Chicago, Illinois, August 2, 1869.
MOTION TO BE ADMITTED.--Robert Hervey, Esq., of the Chicago Bar, at the September term, kindly, at the request of the applicant, filed her certificate of examination and of character from Judge Jameson of the Superior Court of Chicago; also the following written application prepared by her, and moved the court that she be admitted:
_Supreme Court of Illinois--Third Grand Division--September Term.
1869--(In the matter of the Application of Myra Bradwell for license to practice law.)_
_To the Honorable the Judges of the Supreme Court of Illinois_: Now comes your pet.i.tioner, Myra Bradwell, a resident of Chicago, Ill., over twenty-one years of age, and presents to your honors, under rule 76 of this honorable court, the certificate of the Hon. E. S. Williams, Judge of the Circuit Court for the Seventh District, and the Hon. Charles H. Reed, State"s Attorney for the said circuit, stating that they have examined your pet.i.tioner and found her qualified to practice law, and recommend that a license issue to her for that purpose, and also a certificate as to character from the Superior Court of Chicago, as required by the statute and the rule aforesaid, and moves your honors that an order of this honorable court may be entered directing a license to be given to your pet.i.tioner. Your pet.i.tioner suggests that the only question involved in her case is--Does being a woman disqualify her under the laws of Illinois from receiving a license to practice law?--and claims that the Legislature has answered this question in the negative. The first section of chapter eleven of the Revised Statutes, in regard to the admission of attorneys, is as follows:
No person shall be permitted to practice as an attorney or counselor-at-law, or to commence, conduct, or defend any action, suit, or plaint, in which he is not a party concerned, in any court of record within this State, either by using or subscribing his own name or the name of any other person without having previously obtained a license for that purpose from some two of the Justices of the Supreme Court, which license shall const.i.tute the person receiving the same an attorney and counselor-at-law, and shall authorize him to appear in all the courts of record within this State, and there to practice as an attorney and counselor-at-law, according to the laws and customs thereof, for and during his good behavior in said practice, and to demand and receive all such fees as are or hereafter may be established for any services which he shall or may render as an attorney or counselor-at-law in this State.
Your pet.i.tioner claims that the p.r.o.noun he, not only in this section, but the whole chapter, is used indefinitely for any person, and may refer to either a man or woman.
The Legislature devoted the whole of chapter 90 to construing various expressions and words used in the Revised Statutes, and in section 28 said:
When any party or person is described or referred to by words importing the masculine gender, females as well as males shall be deemed to be included.
It is declared by Act No. 29, appendix to the Revised Statutes, that the several chapters composing the Revised Statutes shall be deemed and taken as one act.
It is evident that if a woman should practice law without a license, recover for her services, and be sued for three times the amount, that under Sec. 11 of Chap. 11 for practicing law without a license, it would be no defense for her to say that the masculine p.r.o.noun was used in this section.
Section 3 of our Declaration of Rights, says "that all men have a natural and indefeasible right to worship Almighty G.o.d," etc. It will not be contended that women are not included within this provision.
The 8th section declares "that no freeman shall be imprisoned or disseized of his freehold," etc., but by the judgment of his peers or the law of the land. Will woman be deprived of the guarantees in this section and the right of trial by jury because the masculine p.r.o.noun is used? Under the 11th section no man"s property can be taken or applied to public use without the consent, etc. Is not the property of a woman as secure under this provision as that of a man? In the chapter upon forcible entry and detainer, the masculine p.r.o.noun is used throughout, but no court would hesitate for a moment in holding a woman to be within its provisions if she should wrongfully hold possession of premises.
In the whole Chancery Code of this State, consisting of 53 sections, the word woman, female, she, her, herself, or any other feminine p.r.o.nouns are not to be found, while in the 5th, 8th, 15th, 18th, 19th, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 36th, 37th, and 46th, and some others, the masculine p.r.o.nouns frequently occur. The same construction that would exclude a woman from the provisions of the statute in regard to the admission of attorneys, would place her without the Chancery Code. Yet no respectable attorney would claim because defendants in chancery are represented in the law by masculine p.r.o.nouns, that a woman could not be made a defendant in chancery.
All of which is respectfully submitted.
MYRA BRADWELL.
COMMUNICATION FROM THE COURT.
No order having been entered or opinion filed in this case, on the seventh of October the applicant received from the court, through Hon. Norman L. Freeman, Supreme Court Reporter, the following communication:
STATE OF ILLINOIS, SUPREME COURT, THIRD GRAND } DIVISION, CLERK"S OFFICE, Ottawa, Oct. 6, 1869. }
MRS. MYRA BRADWELL--_Madam_: The court instruct me to inform you that they are compelled to deny your application for 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--it being a.s.sumed that you are a married woman.
Applications of the same character have occasionally been made by persons under twenty-one years of age, and have always been denied upon the same ground that they are not bound by their contracts, being under a legal disability in that regard.
Until such disability shall be removed by legislation, the court regards itself powerless to grant your application.
Very respectfully, your obedient servant,
N. L. FREEMAN.
The applicant, satisfied that under the common law, as modified by our statutes, she could not properly be denied a license to practice law solely upon the ground of her married condition, on the 18th of November filed the following printed argument:
ADDITIONAL BRIEF.
_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.] And now again comes the said Myra Bradwell, it having been suggested to her that the court had a.s.sumed that she is a married woman, and therefore queried whether this would not prevent her from receiving a license, and files this her additional brief.
Your pet.i.tioner admits to your honors that she is a married woman (although she believes that fact does not appear in the record), but insists most firmly that under the laws of Illinois it is neither a crime nor a disqualification to be a married woman.
I propose to state very briefly,
1. What is an attorney?
2. Who may act as attorneys?
3. The rights and powers of married women in relation to their business and property under the common law.
4. Their rights and powers as to transacting business under the recent statutes of our State, with reference to their transacting business in their own names and acting as attorneys.
5. The avenues of trade and the professions opened to women by the liberal enactments of the law-makers, and the construction of the courts.
6. How the Legislature has regarded pet.i.tioner with reference to her rights to carry on business in her own name and act for herself.
I. WHAT IS AN ATTORNEY?--An attorney is "one who takes the turn or place of another."--_Webster._ "An attorney at-law," says Bouvier, "is an officer in a court of justice who is employed by a party in a cause to manage the same for him." All attorneys are agents. They transact business, and appear for, and in the place of their clients who have not the requisite learning, time, or desire to appear in suits for themselves.
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: