American Rebels: Women Lawyers of the Nineteenth Century
by Jill Norgren
No woman shall degrade herself by practicing law…if I can save her. I think the clack of those possible Portias will never be heard at Dwight’s moot courts. “Women’s Rights-women” are uncommonly loud & offensive of late. I loathe the lot.
— George Templeton Strong, a founder of Columbia University Law School, Diary entry, October 9, 1869
Nineteenth century New York City lawyer and diarist George Templeton Strong was a man of intensely felt opinion. Charitable, and on some issues progressive, he nevertheless could not abide the idea of women entering his beloved profession of law. He heartily approved when, in the late 1860s, his alma mater, Columbia College (today New York City’s Columbia University) refused to admit women law applicants.
But a small group of women dared to imagine themselves lawyers and defeated the George Templeton Strongs of the legal profession. These trailblazers, who studied law between the late 1860s and the mid-1880s, became the first generation of American women lawyers, pioneers upon whose shoulders stand subsequent generations of women attorneys including the four jurists — Sandra Day O’Connor, Ruth Bader Ginsburg, Sonya Sotomayor, and Elena Kagan — who have or who are serving on the United States Supreme Court.
In 1865, at the conclusion of the American Civil War, the idea of equal rights found new expression in the United States. In the optimistic decade that followed, a handful of women acted on their aspirations to become lawyers. It was a radical ambition. Law was an all-male profession and most Americans believed that any woman who did not need to work outside her home or farm, ought not to. Nevertheless, the idea of equality was powerful and these women pushed forward reading law with fathers and brothers, knocking on law school doors, and petitioning county, state, and federal courts for bar privileges.
It mattered where the women lived and which law school deans, and judges, they encountered. Columbia University Law School refused to admit women applicants in 1868, while within two years of that date Washington University in St. Louis, Union College (later Illinois’s Northwestern University), and the University of Michigan permitted female law students to matriculate. In progressive counties and states, judges accepted motions to admit women attorneys to the bar. This opened the way to Lemma Barkaloo, Phoebe Couzins, Ada Kepley and Charlotte E. Ray.
Elsewhere, however, courts declined to extend bar privileges to women using the dodge of the common law, statutes employing the pronoun “he,” woman’s proper place and God’s intentions. When Myra Bradwell challenged her exclusion from the practice of law, U.S. Supreme Court Justice Joseph Bradley, in a concurring opinion, rejected her claim of Fourteenth Amendment rights, declaring it was “the law of the Creator” that woman’s destiny should be limited to the “noble and benign offices of wife and mother.” In 1875, two years after the Bradwell decision, Wisconsin Supreme Court Chief Justice Edward Ryan, once an Irish immigrant, also invoked Victorian mores in denying Lavinia Goodell’s petition for state bar membership. He wrote that licensing her would mean “a sweeping revolution of social order,” and cautioned 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.”
Ultimately, when women faced reasoning of this kind, they won admission to law programs, and bar privileges, only by lobbying state legislatures or, in the case of the federal courts, Congress. In 1879, Lavinia Goodell received what Ryan’s ruling had denied her, when her case was heard by the Wisconsin legislature. In the same year the United States Congress passed the anti-discrimination legislation long lobbied for by Washington, D.C. attorney Belva Lockwood, a bill that opened the entire federal bar to all qualified women lawyers.
American historian Virginia Drachman has termed these women “sisters-in-law,” whose struggles to train and to qualify as attorneys are interwoven. Their story is one of nerve and courage, and this first generation did everything that law and custom did not prevent. These women were not invited into the developing areas of corporate and railroad law; they did not wear the black robes of a judge; and, although male lawyers filled the ranks of legislatures and foreign diplomatic missions, presidents refused to appoint women to diplomatic offices just as the public refused to elect them to assemblies and senates.
They did however, practice civil and criminal law, solo and in partnership, back office and courtroom. They were deeply involved in reform, lobbying extensively on the major issues of their day –including suffrage, temperance, race (where they were not always on the side of the angels), prison conditions, and international peace and arbitration. They authored countless books, articles, and newspaper columns. They pursued parallel careers as lecturers. In 1876 Belva Lockwood tried to open a law school for women in Washington, D.C.; twenty years later lawyers Ellen Mussey and Emma Gillett succeeded. Several ventured into politics. After each success, they reached higher – expanding their law practices, writing and lobbying more, and looking for ways to use their knowledge of the law to shape and order society.
Myra Bradwell of Chicago made her mark as plaintiff in a case that went to the U.S. Supreme Court [Bradwell v. Illinois, 16 U.S. 130 (1873)], and as an intrepid innovator in the new field of legal publishing. Catharine Waite, a law school graduate at the age of fifty-six, also published a legal newspaper. Ada Bittenbender maintained a private practice with her husband and then married her talents, and passions, as a lawyer and a reformer, and served as counsel for the Woman’s Christian Temperance Union. Kate Stoneman opened the New York State Bar to women and at the state legislature fought fiercely for woman suffrage. Lavinia Goodell, through her wrangling with Justice Ryan, showed herself to be a lawyer with an uncommonly fine theoretical mind. Mary Hall, Connecticut’s first woman attorney, practiced law and organized the charitable care of poor working children, although she argued against a woman lawyer speaking in court. Her stance, much-debated and not infrequently deplored by other women lawyers, prompted Chicago attorney Catharine Waugh McCulloch to urge that “some bristling aggressive woman lawyer…ought to stir up those slow moving people [who confine themselves to back office work].” She invited Hall to come visit her in Illinois “where it is just as honorable for a woman to talk publicly to men as in private.”
Lelia Robinson practiced law in Boston, Massachusetts and Washington State. She won praise in the courtroom. She also wrote law books for the lay public believing that everyone deserved an opportunity to understand the laws of their states and nation. Like some, but not all, women attorneys, she held special hours for women clients too poor to pay, or who needed special help. At the end of her (too short) life, Robinson signaled her interest in elective politics, helping to organize Nationalist Clubs. In this pursuit she mirrored the daring of Washington, D.C. attorney Belva Lockwood, who had opened the federal bar to qualified women and then campaigned for the U.S. presidency in 1884 and 1888.
Lockwood ran a solo law office in the nation’s capital. Frustrated with the scandalously slow pace of support for woman suffrage, in her 1884 presidential campaign, head high, she told audiences, “I cannot vote but I can be voted for.” She used her knowledge of the law in her practice, as a paid lecturer with a national reputation, and as a lobbyist for women rights and international peace. J. Ellen Foster showed a similar interest in politics, creating considerable controversy among women as a partisan (Republican) temperance activist.
Lockwood, like Catharine McCulloch and California lawyer Clara Foltz, sought courtroom work. They were women of considerable ego, smart attorneys who understood societal prejudices but courageously refused to be defeated by them. Foltz, with her friend and colleague, Laura De Force Gordon, opened the California Bar to women and at the state Supreme Court argued successfully that the state supported Hastings Law School should not deny admission to women on the grounds of their sex. She and Gordon attracted media attention, even occasioning the production of a rare cartoon lampooning women lawyers. Foltz was, at her core, a reformer. She believed that women attorneys “should work to improve the administration of justice,” and made good on this belief by lobbying for, beginning in 1890, the new and radical idea of a public defender.
The first generation of American women lawyers was smart, bold, and defiant. Its members were charming, idealistic, and argumentative. They debated whether to wear their hats in court as well as fundamental questions of service and professional identity. Would pro bono work be their ruin? The women divided on this point; should they be “lady lawyers” or simply lawyers? Was a contingent fee case worth the financial risk? And was there any way around the fact that male attorneys had a far easier time “making the acquaintance” of businessmen in clubs, business, and public places? Even the most shy of these pioneering professionals were women of considerable spirit, women who believed that legal training would permit them a new place in the world. What place, of course, was the question.
The state of law was fluid in these years and so, therefore, was the legal profession. But class, race, and gender lines of varying rigidity affected opportunity. The fields of banking and (railroad) torts, for example, offered very different professional opportunities to male and female practitioners. Rebuffed, often ridiculed, these women understood that their society was not perfect, yet they never lost the spirit to say “it can be made better.” This civic optimism is an important aspect of their example and importance.
Some of these first women attorneys chose a public stage from which to advocate for women’s rights. Others guarded their privacy in back offices. Each outwitted history by offering herself as a model of female accomplishment and independence. This belief in self and professionalism also underscores their historical significance.
The careers of these trailblazing nineteenth century women lawyers warrant our attention because their work marks a new initiative, an additional intellectual and cultural component in an ancient profession. Their presence and impact initially was small. Women’s presence in law schools and the work arena only blossomed one hundred years later in the 1970s when social movements, the war in Vietnam, and political and legal mandates helped to create equality of opportunity. However, this possibility of professional equality began with the rebel women of the late nineteenth century. Today, women attorneys stand on their shoulders.
About the Author:
Jill Norgren is a writer, public lecturer, and professor emerita of political science at John Jay College and the Graduate Center, the City University of New York. Her areas of interest include cultural pluralism, legal history and women and politics. She is co-founder of the web site HerHatWasintheRing. She is the author of The Cherokee Cases; Partial Justice; and American Cultural Pluralism and Law (with Serena Nanda). Her writing on women lawyers includes numerous articles and two prize-winning biographies: Belva Lockwood: The Woman Who Would be President (2007) and Belva Lockwood: Equal Rights Pioneer (2009 – a young adult biography) Most recently, she published Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers (2013). She is at work on a group biography of trailblazing women lawyers of the twentieth century.