In 1859, the Judiciary
Committee of the Ohio House of Representatives rejected the idea that
laws should be enacted to enhance women's rights in any but the smallest
ways. It dismissed out of hand the radical suggestion that women should
be allowed to vote. "[W]hatever legislation tends to impose upon woman
the responsibilities that now only and peculiarly belong to man," the
committee reported, "must have a tendency to place her beyond her proper
sphere of womanhood." Fifteen years later, at the third Ohio constitutional
convention, opponents of female suffrage declaimed upon the natural, divinely
ordained division of labor between men and women. Women were "but little
lower than the angels," kind and tender, devoted to home and children,
unsuited physically and emotionally for the rough and corrupt world of
politics. Men were the "sterner sex," rude and vulgar, fit for politics,
police, and war. The "woman with a ballot in her hand" would discard home
and family and sally forth into the masculine world, forfeiting the love
and protection of men and bringing ruin upon marriage, society, and herself.1
The masculine world included the courtroom, an arena in
which adversaries fought fiercely with trickery and verbal assault. Women
might be teachers and even doctors, professions that could be viewed as
extensions of the nurturing domain of the home, but they were not made
for "the hot strifes of the bar." The legal profession had to do "with
all that is selfish and extortionate, knavish and criminal, coarse and
brutal, repulsive and obscene in human life": sodomy, incest, obscenity,
and other indecencies. Women's engagement in the law could only diminish
the public reverence in which they were held. They were made for "gentler
and better things." With their "natural and proper timidity and delicacy,"
they were destined not to be
David M. Gold, Ph.D., received his J.D. from The Ohio
State University in 1976 and a Ph.D. in history from OSU in 1982.
1. House Committee on the Judiciary, "Report Relative
to Woman's Rights," Ohio House Journal Appendix 55 (1859): 91;
Official Report of the Proceedings and Debates of the Third Constitutional
Convention of Ohio (Cleveland, 1874), 2:1830-35 (hereinafter 1873-74
Proceedings and Debates).
The Admission
of Women to the Ohio Bar
Page 166
officers of the court but to fulfill "the noble and benign
offices of wife and mother."2
Given the notion that men and women properly occupied
"separate spheres," a notion deeply ingrained and widely held among women
as well as men, it is not surprising that the cause of woman suffrage
made little headway until the twentieth century. Except for Wyoming and
Utah, which as territories had allowed females to vote as early as 1 869
and 1870, respectively, women could not vote in state or federal elections
anywhere until the 1890s. In 1910, Washington became only the fifth state
to grant woman suffrage, and women could not vote for president anywhere
east of the Mississippi until 1913.3 The Ohio constitutional convention
of 1873-1874 soundly defeated a proposal to enfranchise females, and women
in the Buckeye State would not get the right to vote in all elections
until 1919.4
But the ideology of separate spheres could not keep women
out of the bar. By 1 890 women had been admitted to practice in twenty-three
states and the federal courts. By the end of World War I, they had been
admitted almost everywhere. In Ohio, so laggard in the matter of suffrage,
the first female lawyers joined the bar in 1873. Even as the constitutional
convention was crushing a proposal to extend the franchise by a margin
of more than three to one, a panel of three judges of the Court of Common
Pleas admitted Nettie Cronise to the practice of law. Coming upon the
recommendation of a committee of the Seneca County bar that included some
of the area's most prominent attorneys, the deed appears to have been
done without fanfare and with no concern that women could not deal with
"the hot strifes of the bar." The Columbus newspapers reported Nettie
Cronise's admission briefly and without comment. Nettie's sister Florence,
admitted a few months later, recalled that "[o]ur brothers extended the
hand in welcome, so far as to put no visible obstacle in our wayneither
did they make any effort to remove any. We began on the same footing as
any of the young men."5
2. E. Anthony Rotundo, American Manhood: Transformations
in Masculinity from theRevolution to the Modern Era (New York, 1993),
212; Michael Grossberg, "Institutionalizing Masculinity: The Law as a
Masculine Profession," in Mark C. Carnes and Clyde Griffen, eds., Meanings
for Manhood: Constructions of Manhood in Victorian America (Chicago,
1990), 133-51; Barbara J. Harris, Beyond Her Sphere: Women and the
Professions in American History (Westport, Conn., 1978), 59-60, 85,
110; In re Bradwell, 55 Ill. 535, 542 (1870); Application of
Goodell, 39 Wis. 232, 245-46 (1875); Bradwell v. State, 83
U.S. 130,141 (1873) (Bradley, J., concurring).
3. For the years in which women achieved suffrage, see
Anne F. Scott and Andrew M. Scott, One Half the People: The Fightfor
Woman Suffrage (Philadelphia, 1975), 166-68.
4. 1873-74 Proceedings and Debates, 2:197 1.
5. Virginia G. Drachman, Sisters in Law: Women Lawyers
in Modern American History (Cambridge, Mass., 1998), 251-53; Karen
Berger Morello, The Invisible Bar: The Woman Lawyer in America 1638
to the Present (New York, 1986), 37-38; Lelia J. Robinson, "Women
The Admission
of Women to the Ohio Bar
Page 167
Since opponents of women's admission to the bar and opponents
of woman suffrage used virtually identical arguments, it seems ludicrous
that Ohio, or any other jurisdiction, would permit females to represent
clients in all the courts of the state, with fortunes, liberties, and
even lives at stake, and not let them vote for village mayor. Perhaps
the scope of the consequences accounts for the difference. Although a
woman lawyer might bear an awesome responsibility for an individual client,
few besides that client would be affected by the lawyer's performance.
Furthermore, large numbers of women were not clamoring for admission to
the bar,6 and of course no one had to patronize those who got in. The
grant of suffrage, however, would have instantaneously doubled the electorate,
and women's ballots would have to be counted. If females voted in large
numbers, and voted differently from men, the consequences at every level
of government would be immense.7
Another possible explanation for the difference between
suffrage and admission to the bar lies in the means needed to achieve
them. Since courts rejected proffered interpretations of existing law
that would have allowed women to vote, suffrage had to be achieved by
legislation or, as in Ohio, by constitutional amendment. Either method
meant marshalling great public support and working through the stumbling
blocks of potentially complicated formal procedures. But in the days before
statewide bar examinations, admission to the bar was usually accomplished
by application to a court. For example, Ohio law required that an applicant
be admitted by any two judges of the state Supreme Court or by a commission
appointed by the court. Thus, depending upon the state, one sympathetic
judge or panel of judges could override tradition, public sentiment, and
even the intent of the legislature; the decision would stand unless and
until overridden by a higher court or the legislature.8
Lawyers in the United States," Green Bag, 2 (January,
1890), 23-24; 1873-74 Proceedings and Debates, 2:1971; History
of Seneca County, Ohio (Chicago, 1886), 307, 759, 813-15, 825-32;
Columbus Daily Dispatch and Daily Ohio Statesman, 4 April 1873;
Columbus Daily Ohio State Journal, 5 April 1873; Virginia G. Drachman,
Women Lawyers and the Origins of Professional Identity in America:
The Letters of the Equity Club, 1887-1890 (Ann Arbor, Mich., 1993),
94.
6. Douglas Lamar Jones, "Lelia J. Robinson 's Case and
the Entry of Women into the Legal Profession in Massachusetts," in Russell
K. Osgood, ed., The History of the Law in Massachusetts: The Supreme
Judicial Court, 1692-1992 (Boston, 1992), 260.
7. At the 1912 Ohio constitutional convention, supporters
of woman suffrage argued that the measure would produce reforms in government.
Opponents agreed; the fear that women voters would cause the adoption
of statewide prohibition induced even otherwise progressive "wets" to
oppose female suffrage. Hoyt Landon Warner, Progressivism in Ohio,
1897-1917 (Columbus, 1964), 324. On the ongoing battle between "wets"
and suffragists in Ohio, see Canie Chapman Catt and Nettie Rogers Shuler,
Woman Suffrage and Politics: The Inner Story ofthe Suffrage Movement
(1926; reprint, Seattle, 1969), 196-210.
8. Joseph R. Swan, comp., Statutes of the State of
Ohio (Cincinnati, 1854), ch. 9, § § 1-2: 54.
The Iowa judge who admitted Belle Mansfield in 1869 stretched the law
as far as it could
The Admission
of Women to the Ohio Bar
Page 168
But there may have been another reason for the early success
of women in gaining access to the legal profession: the belief in the
individual's natural right to "select his avocation." Historians have
noted that courts initially relied on natural law to exclude women from
the bar. The very idea of "separate spheres" rested on the inherent differences
between men and women. The Supreme Court of Wisconsin, for example, declared
in 1875 that "[t]he law of nature destines and qualifies the female sex
for the bearing and nurture of the children of our race and for the custody
of the homes of the world and their maintenance in love and honor." Nature
itself thus created a separate, domestic sphere for women, distinct from
the masculine realms of politics and law. However, "nature" could work
for women as well as against them, especially when attached to American
concepts of rights. Courts and legal commentators consistently maintained
that suffrage was a political or civil privilege granted by society rather
than a right conferred by nature. Advocates of woman suffrage relied unsuccessfully
on natural-rights arguments until the end of the nineteenth century. But
the right to work, to keep the fruits of one's labor, to "pursue happiness"
as one so inclined, especially after the successful struggle against slavery,
tugged strongly at the American conscience and could be justified as a
natural right in a way that suffrage could not.9
II
Nineteenth-century women's-rights advocates rarely engaged
in serious analysis of natural-rights theory. Except occasionally where
slavery was concerned, Americans generally took natural rights for granted;
their existence was an assumption, not a philosophical position.10 But,
as the writings of John Locke show, the assumption rested on a theoretical
foundation that distinguished between the natural right to work and the
political right to vote.
In a state of naturethat is, in the situation in
which humanity finds itself
go. See Morello, Invisible Bar, 12. Admission by
a local court, however, did not necessarily mean the right to practice
before all the courts of the state.
9. Blair v. Ridgely, 41 Mo. 63, 173-74 (1867);
Drachman, Sisters in Law, 10-11; Jones, Robinson's Case,
267-68; Application of Goodell, 39 Wis. 232, 245 (1875); Joseph
Story, Commentaries on the Constitution of the United States (Boston,
1833), 53-55; Thomas M. Cooley, A Treatise on the Constitutional Limitations
Which Rest Upon the Legislative Power of the States oftheAmerican Union,
3rd ed. (Boston, 1874), 703; Geo. W. McCrary, A Treatise on the American
Law of Elections, 3rd ed. (Chicago, 1887), 9; Mason v. State
ex rel. McCoy, 58 Ohio St. 30, 49 (1898); Aileen S. Kraditor, The Ideas
of the Woman Suffrage Movement, 1890-1920 (1965; New York, 1981),
43-52.
10. Benjamin Fletcher Wright, Jr., American Interpretations
of Natural Law: A Study in the History of Political Thought (1931;
New York, 1962), 176-79 and ch. 7 generally.
The Admission
of Women to the Ohio Bar
Page 169
when there is no governmentall men are equal, wrote
Locke. Not equal in every respect, of course, for people have different
talents, characters, and experiences. But they are equal in the "Right
that every Man hath to his Natural Freedom, without being subjected
to the Will or Authority of any other Man." Since all are by right "equal
and independent," it follows that "no one ought to harm another in his
Life, Health, Liberty, or Possessions." The reason men gave up the state
of nature and entered into societies was so that their united strength
could secure peace and defend property against human predators. According
to Locke, property rights were rooted in labor. Every person had an exclusive
right to his own body. The labor of one's body and the work of his hands
were also his. Whatever resources a man removed from its natural state
and mixed with his labor became his property. "For this Labour
being the unquestionable Property of the Labourer, no Man but he can have
a right to what that is once joyned to."11
Locke did not specify the type of government that men
should institute to protect their natural rights. The government might
be a democracy, in which everyone took part in the making of laws. Or
the people might vest the lawmaking power in a small group or even in
one monarch, or in some combination of these various forms. Natural rights
thus did not include political rights, such as the right to vote. The
only political rights were the rights to enter into political society
in the first place and the right to overthrow a government that abused
its power.12
In Locke's theory, might did not make right. Natural rights
belonged to all people simply because they were human beings. But Locke
put a different twist on the word natural when he discussed relations
between husband and wife. Although spouses had "but one common Concern"marriage
for the purpose of perpetuating the species"yet having different
understandings, [they] will unavoidably sometimes have different wills,
too; it therefore being necessary that the last Determination, i.e.
the Rule should be placed somewhere, it naturally falls to the Man's share,
as the abler and the stronger." The husband's rule over the wife extended
only to the things they had in common, and she might leave him when he
violated her natural rights, but Locke clearly did not view marriage as
an equal partnership.13
Locke strongly influenced political thought in the American
colonies,
11. John Locke, Two Treatises of Government, Peter
Laslett, ed. (New York, 1988), 269, 304, 271, 350, 288.
12. Ibid., 354-55, 405-28. It is possible to read into
Locke a right to vote where taxation, a taking of property, is concerned.
Paul K. Conkin, Self-Evident Truths: Being a Discourse on the Origins
and Development of the First Principles of American GovernmentPopular
Sovereignty, Natural Rights, and Balance & Separation of Powers
(Bloomington, Ind., 1974), 97.
13. Locke, Two Treatises, 321.
The Admission
of Women to the Ohio Bar
Page 170
particularly among revolutionists.14
Thomas Jefferson eloquently encapsulated Locke's ideas in the Declaration
of Independence when he wrote: "We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness. That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed." The contradiction between this ringing declaration of universal
equality and the existence of slavery troubled Jefferson deeply, but he
apparently had no qualms about the inequalities between men and women.
He regarded as a self-evident truth that women were designed by nature
for domestic duties and not for public life.15
The natural-rights philosophy waned in influence as the
Revolution receded in memory, but it received a boost in the 1830s from
the antislavery movement. Racism was general in the United States at the
time, and even opponents of slavery generally refrained from advocating
social and political equality for blacks. But most antislavery activists
believed that blacks were in some sense equalthat they were
people and therefore entitled to the same God-given rights to life, liberty,
and property as whites. Abraham Lincoln expressed it best in his debates
with Stephen Douglas in the Illinois senatorial race of 1858:
I have no purpose to introduce political and social
equality between the white and black races . . . . but I hold notwithstanding
all this, there is no reason in the world why the negro is not entitled
to all the natural rights enumerated in the Declaration of Independence,
the right to life, liberty and the pursuit of happiness . . . . [11n
the right to eat the bread, without leave of anybody else, which his
own hand earns, he is my equal and the equal of Judge Douglas, and
the equal of every living man. 16
Natural-rights ideas pervaded the antislavery movement
and spread beyond it. William Lloyd Garrison explicitly rested his radical
abolitionism on the "self-evident truth" of the Declaration of Independence
that "all men are created equal." The constitution of the Philadelphia
Female Anti-Slavery Society denounced slavery as "contrary to the laws
of God and the principles of our Declaration of Independence." Abolitionist
women, appealing to the
14. David A. J. Richards, Foundations of American Constitutionalism
(New York, 1989); David A. J. Richards, Toleration and the Constitution
(New York, 1986); Jerome Huyler, Locke in America: The Moral Philosophy
of the Founding Era (Lawrence, Kans., 1995).
15. John Chester Miller, The Wolf by the Ears: Thomas
Jefferson and Slavery (New York, 1977),14-15,179-83.
16. Wright, Natural Law, 173-76, 210-31; Roy P.
Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick,
N. J., 1953), 3:16. Garrisonian and other radical abolitionists agreed
on the existence of a "higher law" that forbade slavery, but they disagreed
among themselves over its legal implications. See William M. Wiececk,
The Sources of Antislavery Constitutionalism in America, 1760-1848
(Ithaca, N.Y., 1977), 240-42, 259-61.
The Admission
of Women to the Ohio Bar
Page 171
laws of God and nature on behalf of slaves, quickly became
conscious of their own natural rights. Their heightened awareness of the
evils of oppression and the disdain with which many men inside and outside
the movement treated them made them feel more deeply their own subjugation:
their lack of political rights, the severe limitations on their property
rights, their legal subordination to their husbands. Abby Kelley observed
in 1838 that "in striving to strike [the slave's] chains off, we found
most surely, that we were manacled ourselves." Soon some female abolitionists,
analogizing the lot of women to that of slaves, began demanding for married
women the natural right to own property in their own names and to keep
the fruits of their labor.17
III
In 1848, the first women's-rights convention, called in
Seneca Falls, New York, by antislavery activists Elizabeth Cady Stanton
and Lucretia Mott, adopted a Declaration of Sentiments modeled on the
Declaration of Independence. "We hold these truths to be self-evident,"
read the Declaration, "that all men and women are created equal." Just
as the Declaration of Independence included a catalog of complaints against
King George III, the Declaration of Sentiments listed the grievances of
women against men, beginning with man's denial to woman of "her inalienable
right to the elective franchise." As noted above, suffrage had not traditionally
been regarded as a natural right, at least among jurists and political
philosophers, but the Declaration listed other complaints more in line
with natural-rights theory. Man, it said, had taken from woman "all right
in property, even to the wages she earns. He has monopolized nearly all
the profitable employments . . . . He closes against her all the avenues
to wealth and distribution, which he considers most honorable to himself.
As a teacher of theology, medicine, or law, she is not known."18
17. Daniel J. Boorstin, ed., An American Primer
(New York, 1966), 298; Ruth Bogin and Jean Fagan Yellin, introduction
to Jean Fagan Yellin and John C. Van Home, eds., The Abolitionist Sisterhood:
Women's Political Culture in AntebellumAmerica (Ithaca, N. Y., 1994),
6; Carolyn Williams, "The Female Antislavery Movement: Fighting against
Racial Prejudice and Promoting Women's Rights in Antebellum America,"
in Yellin and Van Home, Abolitionist Sisterhood, 159-177; Blanche
Glassman Hersh, The Slavery of Sex: Feminist-Abolitionists in America
(Urbana, Ill., 1978), 6-35, 196-200; Merton L. Dillon, The Abolitionists:
The Growth ofa Dissenting Minority (New York, 1974), 58. Garrisonians
believed in natural rights, but they differed from other antislavery radicals
in holding that natural rights were not incorporated into American constitutional
law. William M. Wiecek, The Sources ofAntislavery Constitutionalism
in America, 1760-1848 (Ithaca, N.Y., 1977), 240-42, 259-61. Many antislavery
women refused to make the leap from abolitionism to women's rights. See,
for example, Amy Swerdlow, "Abolition's Conservative Sisters: The Ladies'
New York City Anti-Slavery Societies, 1834-1840," in Yellin and Van Home,
Abolitionist Sisterhood, 31-44.
18. Boorstin, American Primer, 379-80. Suffrage
had not been included as a natural right in the first state constitutions,
but by the 1820s, when Americans took popular rights for granted
The Admission
of Women to the Ohio Bar
Page 172
The Seneca Falls convention spawned numerous successors,
especially in Ohio, a hotbed of abolitionist activity in which women played
a prominent part. In October 1849, Ohio's voters approved the holding
of a convention to revise the state constitution. In January 1850, leading
black citizens of Ohio held their own convention in Columbus to organize
a campaign to induce the forthcoming constitutional convention to grant
blacks the "heaven bestowed and inalienable right" of suffrage. Perhaps
inspired by the black meeting, on March 30 the Salem Anti-Slavery Bugle,
which advocated women's rights as well as abolitionism, published the
first call for a women's convention to meet in Salem on April 19 for the
avowed purpose of pressing women's claims upon the men who would be convening
to revise the constitution.19
Various issues impelled Ohioans to demand a constitutional
convention. One, temperance, attracted mass support among women, who flooded
the convention with petitions to outlaw the sale of intoxicating liquors.
Other issues included judicial reform, the mounting state debt, inequities
in the tax system, and regulation of banking and other corporations. Equality
was a central theme of the convention debates. The published proceedings
are replete with vehement denunciations of corporate privilege and the
use of state power to benefit certain classes of society at the expense
of others. With slavery threatening to tear the country apart, racial
equality in education and voting also figured in the debates.20
Women's rights, however, played no role in the call for
a constitutional convention. The women who met on short notice at Salem
had no illusion that all women in Ohio shared their views. Indeed, they
regarded the awakening of women to their state of subjugation as one of
their primary goals. Nor did they imagine that the Salem convention would
produce immediate practical results. In publishing the call, the Bugle
editorialized:
rather than as matters requiring justification, proponents
of broader male suffrage occasionally claimed the franchise as a natural
right. Wright, Natural Law, 117, 119, 187, 190, 195-96, 200-02,
and ch. 7 generally.
19. Minutes of the State Convention, of the Colored Citizens
of Ohio, Convened at Columbus, January 9th, 10th, 11th, and 12th, 1850
(Columbus, 1850), 17; Nell Irvin Painter, Sojourner Truth: A Life,
A Symbol (New York, 1996), 120; Robert W. Audretsch, comp. and ed.,
The Salem, Ohio 1850 Womenc Rights Convention Proceedings (Salem,
Ohio, 1976), 17 (hereinafter Salem Proceedings).
20. Report of the Debates and Proceedings of the Convention
for the Revision of theConstitution of the State of Ohio (Columbus,
1851), 1:746 and 2:888 (index references to temperance petitions), 2:11-13
(race and education), 2:550-54 (race and suffrage) (hereinafter 1850-51
Debates and Proceedings); Francis P. Weisenburger, The Passing
of the Frontier, 1825-1850, vol. 3 of The History of the State
of Ohio, ed. Carl Wittke (Columbus, 1941), 478-79; David M. Gold,
"Public Aid to Private Enterprise Under the Ohio Constitution: Sections
4, 6, and 13 of Article VIII in Historical Perspective, University
of Toledo Law Review,
The Admission
of Women to the Ohio Bar
Page 173
Does any one ask, "What good will it do?" We answer,
it will excite thought, promote discussion at the fireside, through
the press, and in the public assembly; and though you may not, and doubtless
will not, attain at once the great end which you have in view, you will
at least make the task an easier one to those who shall come after you.
The "great end" was suffrage, for with the vote, women's
rights advocates believed, would come political power enough to bring
about other reforms in the law. In the words of J. Elizabeth Jones, delivered
at Salem, universal suffrage was "the safeguard to liberty."21
Like the women at Seneca Falls, the delegates at Salem,
and those women who sent letters of support, insisted upon suffrage as
a natural right. They resolved that social and political differences between
men and women "based on a distinction of sex, are contrary to the laws
of Nature." They hammered away at the theme that men and women had the
same natural, God-given, inalienable rights. For the most part, they did
not trouble themselves with philosophical distinctions between natural
rights and rights that derived from social or political convention, insisting
instead that equality in all forms was itself a natural right. "We deny
that the right of suffrage is a conventional right," declared Elizabeth
Wilson. "It is a natural and inalienable right."22
Elizabeth Jones complained that women could not get fair
treatment from a legal system in which all the players were men, but neither
she nor anyone else at Salem expressly claimed the right to practice law.
They did, however, implicitly demand access to all types of employment.
In their resolutions, they deprecated their exclusion from "all, or almost
all, lucrative employments, and enlarged spheres of labor." They memorialized
the delegates to the constitutional convention to free women from legal
and economic dependence upon their husbands, asking that in the new constitution
women "shall be secured not only the right of Suffrage, but all the political
and legal rights that are guaranteed to men."23
The official Address to the Women of Ohio adopted by the
Salem convention urged women to inundate the constitutional convention
with memorials and addresses. The women (and men) of the region around
Salem responded with alacrity, mostly through the medium of Friend Cook,
the
16 (Winter, 1985), 412-23; Eugene H. Roseboom, The
Civil War Era, 1850-1873, vol. 4 of History of the State of Ohio
(Columbus, 1944), 126-35.
21. Audretsch, Salem Proceedings, 19, 23-24, 53,
58. Jane Elizabeth Jones was an antislavery and women's-rights lecturer
and for several years coeditor of the Salem Anti-Slavery Bugle. American
National Biography (1999), s.v. "Jones, Jane Elizabeth," by Mary Elizabeth
Perry.
22. Audretsch, Salem Proceedings, 23, 32.
23. 1bid., 58, 24-25.
The Admission
of Women to the Ohio Bar
Page 174
delegate from nearby Portage County. Some of the petitions
asked for suffrage, others for equal rights in general. One requested
the elective franchise for white women. On May 15, 1850, Cook presented
a typical memorial praying for "equal rights, political and civil, without
regard to sex or color." William Sawyer, one of the most fervid racists
at the convention, declared that he would "forever object" to all such
petitions "so far as the colored population are concerned. I don't care
if they prefer to let women vote and hold office-that don't disturb me."
According to the reporter of proceedings, Sawyer's remark elicited laughter.
Another delegate characterized the petitions as "effusions of folly and
fanaticism" and worried that they would take up valuable time. A third,
although favoring the suppression of all discussion of such petitions,
could not refrain from expressing his disgust that the rights and interests
of "our wives and daughters" should be mentioned in the same breath as
the rights of blacks.24
Not everyone who presented women's-rights petitions was
a friend of the cause. Shortly after the Salem convention, Frances D.
Gage, a leader of the movement, met with a group of like-minded women
in McConnelsville in southeastern Ohio. Forty signed a memorial asking
that the words "white" and "male" be omitted from the new constitution;
a county-wide meeting later in the month produced more signatures. In
June, William Hawkins of McConnelsville presented to the constitutional
convention two memorials signed by 120 women. To have Hawkins offer the
memorials was something of a coup, for he was a former president pro tempore
of the Ohio Senate and one of the most active members of the convention.
However, even though one woman later remembered him as one of "our friends
in the Convention," he was really more a gallant opponent than a patron
of the cause. Hawkins lauded the respectable character of the signatories
and their superior "moral and mental attainment." He asked that the memorials
be treated with "due respect, candor and courtesy." He also requested
that if the convention rejected the memorials, it give its reasons and
not "resort to scorn and ridicule." But Hawkins acknowledged that he did
not agree with the petitions. Although he would later move to strike the
word "male" from the election committee's report, when the convention
voted on the final report, he went along with the restriction of the franchise
to white males.25
Hawkins' plea that the convention not ridicule the memorials
indicated
24. Ibid., 28; 1850-51 Debates and Proceedings,
1:59, 75-76.
25. Elizabeth Cady Stanton, Susan B. Anthony, and Matilda
Joslyn Gage, eds., History of Woman Suffrage, vol. 1: 1848-1861
(Rochester, N. Y., 1887), 117-18, 122; 1850-51 Debates and Proceedings,
1:615 and 2:8, 555. On Gage, a women's-rights, antislavery, and temperance
activist, see Carol Steinhagen, "The Two Lives of Frances Dana Gage,"
Ohio History, 107 (Winter, 1998), 22-38. On Hawkins, see Charles
Robertson, History ofMorgan County, Ohio (Chicago, 1886), 324.
The Admission
of Women to the Ohio Bar
Page 175
|
Dr.
Norton S. Townshend (SC264, Ohio Historical Society Collections.)
|
the hopelessness of the cause. Nevertheless, reform crusader
Dr. Norton S. Townshend pressed it valiantly with arguments developed
in the debate over black suffrage. In that debate, Townshend maintained
that human governments could neither create nor destroy rights, which
came from the Creator. The only purpose of government was to protect natural
rights, which belonged equally to all men. Because government derived
its power to render this protection from the consent of the governed,
it could not legitimately impose taxes upon or demand obedience from any
portion of the population without giving that portion a say in framing
the laws.
Townshend also condemned restrictions on suffrage as contrary
to the egalitarian principles of democracy and the Democratic Party. Just
as he would not vote for legislation that would confer special benefits
on corporations or a privileged economic class, he declared, so he would
not agree to any measure that placed any man below the common level. "Let
us then have no limitations of suffragefor who does not know that
all such limitations are anti-democratic?"26
Simeon Nash took issue with Townshend's natural-rights
argument. Suffrage, he asserted, was not a natural right but "a mere question
of expediency," which was why minors and females could be excluded from
the franchise. The overwhelming majority of the delegates evidently agreed,
for the motion to strike the word "white" from the voting provisions lost,
6612.27
Immediately after the defeat of black suffrage, E. B.
Woodbury of Ashtabula County, in Salem's corner of the state, moved to
strike the word
26. 1850-51 Debates and Proceedings, 2:550-51.
On Townshend, a physician, educator, and antislavery politician, see Frederick
J. Blue and Robert McCormick, "Norton S. Townshend: A Reformer for All
Seasons," in Jeffrey P. Brown and Andrew R. L. Cayton, The Pursuit
ofPublic Power: Political Cutlure in Ohio, 1787-1861 (Kent, Ohio,
1994), 144-54.
27. 1850-51 Debates and Proceedings, 2:553-54.
With additional votes cast the next day, the final count was 70-13. Ibid.,
556.
The Admission
of Women to the Ohio Bar
Page 176
"male" from the report of the elective franchise committee.
Townshend again took up the cudgel of natural rights, though he would
not try the patience of the delegates by repeating at length what he had
just said on behalf of blacks. He did note, however, that women equalled
men in intelligence and virtue and that their participation in politics
would only improve it. In view of the constant refrain sung by opponents
of woman suffrage that women would neglect their domestic duties if they
got involved in politics, Townshend also felt constrained to point out
that of the many female signatories to the women's-rights petitions whom
he personally knew, all faithfully discharged the responsibilities of
home and family. No one else spoke for or against the motion, which lost
72-7. Five of the favorable votes came from men who had also voted for
black suffrage. Several of the supporters of black suffrage opposed giving
the vote to women. Immediately after the vote, James W. Taylor of Erie
County, one of the latter group, moved to amend the committee report to
allow the General Assembly to confer suffrage upon people not previously
entitled to vote. The motion lost, 6811.28
Nine days after the defeats suffered by blacks and women,
S. J. Andrews made one last, quixotic effort to change the convention's
mind on black suffrage. Speaking in favor of a motion to recommit the
committee's report, Andrews declared that
the right to exercise the elective franchise cannot
be made to depend upon caste or color. It may depend upon intelligence,
upon attachment to free institutions, upon the relations su[s]tained
to others, upon all the circumstances that go to make up the social
condition; but a man's right to vote no more depends upon the color
of his skin, than it does upon the color of his hair.
But Andrews denied that suffrage was a natural right.
When "sound policy" and the "public interest" required restriction of
the right, then the majority might restrict it. "We exclude females,"
said Andrews, "upon considerations of public policy that look to their
positiontheir happinessthe effect of marriage on their legal
rightsand more than all, to the peace and harmony of the domestic
relation." The motion to recommit lost overwhelmingly, and the new constitution
went into effect without giving blacks or women the right to vote.29
In the face of the crushing defeat handed to them by the
constitutional convention, women's-rights advocates in Ohio soldiered
on undaunted. In the five years after Salem, state or national women's-rights
conventions
28. Ibid., 555-56. A delegate who missed the vote on woman
suffrage later added his name to the opposition, making the final vote
73-7.
29. Ibid., 635, 640.
The Admission
of Women to the Ohio Bar
Page 177
were held in Akron, Massillon, Cleveland, and Cincinnati.
All sounded the same themes: men and women were created equal; all had
the same inherent, inalienable, God-given rights; natural rights included
the right to be governed only by consent, given through participation
in the political process; the power of the vote would ensure general legal
and social equality, including the right to work in all types of employments
for the same remuneration as men.30
In the most dramatic speech made at any of these conventions,
however, former slave Sojourner Truth did not ask for the right to vote.
All she wanted was to keep what was hers. Ostensibly referring to woman's
alleged intellectual inferiority, but hard on the heels of her claim to
have done physical labor equal to a man's, Truth asked, "If my cup won't
hold but a pint, and yourn holds a quart, wouldn't ye be mean not to let
me have my little half-measure full?" Unlike the more contentious demand
for suffrage, this was a demand unquestionably in line with the natural-rights
tradition.31
Throughout the 1850s, proponents of woman suffrage submitted
numerous petitions with thousands of signatures to the General Assembly.
A two-man select committee of the Senate, including Townshend's successor,
Herman Canfield, reported on the petitions favorably and urged the legislature
to submit a proposed constitutional amendment to the voters. The idea
went no further, however, and at the end of the decade a House committee
rejected female suffrage.32
IV
While the drive for woman suffrage floundered, the Senate
came surprisingly close to authorizing women to practice law. At every
women's rights convention, the delegates demanded access to all fields
of employment, including the professions. At the 1 850 Salem convention,
firebrand J. Elizabeth Jones of Marlborough declared that no woman ever
30. Stanton, Anthony, and Gage, Woman Suffrage,
111-67, 815-20.
31. Ibid., 116. For a critical discussion of Truth's speech
and the report of it by Frances D. Gage, reprinted in Woman Suffrage,
see Painter, Sojourner Truth, 121-31, 164-78.
32. Senate Select Committee on Giving the Rights of Suffrage
to Females, "Report," Ohio Senate Journal Appendix 53 (1857): 518-27
(appendix separately bound); House Committee on the Judiciary, "Report
Relative to Woman's Rights," Ohio House Journal Appendix 55 (1859):
88-93 (appendix bound together with Journal). According to Stanton et
al., in or around 1857 the Ohio Senate defeated a proposal to amend the
state constitution to enfranchise women by a 44-44 vote. Woman Suffrage,
167. The story is repeated in Doris Weatherford, A History of the American
Suffragist Movement (Santa Barbara, Calif., 1998), 75, but it is manifestly
inaccurate. The Senate at that time had only thirty-four members. Moreover,
given the resounding defeats woman suffrage suffered in the constitutional
conventions of 1850-1851 and 1873-1874, such a close vote is highly unlikely.
I have been unable to find a report of a vote on female suffrage in either
the House or Senate Journal in the 1850s.
The Admission
of Women to the Ohio Bar
Page 178
|
Caroline
M. Severance. (SC3900, Ohio Historical Society Collections.) |
tried in an American court of law had "had such a trial
as she had a right to claim," because every officer of the courtjudge,
juror, prosecutor, defense lawyerwas a man. Ten years later, at
a national convention in New York, Jones decried the treatment received
by women in court at the hands of coarse male attorneys. Women lawyers,
said Jones, would elevate the morals and manners of the profession. Male
attorneys need not fear the competition of women, she argued. Good attorneys
of both sexes would flourish, poor ones would fail, and both the profession
and the public would benefit.33
On March 23, 1854, Norton Townshend, then serving his
sole term as a state senator, presented to the Ohio Senate a petition
for women's rights and a memorial by Caroline M. Severance of Cleveland
that, among other things, complained that the Ohio Supreme Court had rejected
the application of a woman for admission to the bar. The next day, Senator
Charles Follett introduced a bill to revise the procedure for admission
to the bar. On April 20, Townshend moved to amend the bill to allow women
to practice law. The motion led to some "amusing hits," and the senators
"indulged themselves in a little fun." With Follett's support, however,
the amendment passed, 19-11. Afterwards, though, Follett may have been
persuaded that the bill itself, as amended, would fail, or perhaps the
senators had had enough fun. The next day, again with Follett's support,
the Senate reversed itself, but thirteen members still voted for the amendment.34
33. Audretsch, Salem Proceedings, 58; Stanton,
Anthony, and Gage, Woman Suffrage, 695.
34. Ohio Senate Journal 51 (1854): 321-22, 328,
484-85, 489; "Memorial of Mrs. Caroline M. Severance, of Cleveland, in
behalf of Woman's Rights, in Respect to Property and the Exercise of the
Elective Franchise," Ohio Senate Journal Appendix 51 (1854): 61;
Columbus Ohio State Daily Journal, 21 April 1854. According to
Severance, the female applicant was examined and found qualified, but
the Supreme Court in bank found her "incompetent by reason of her sex."
There is no reported decision of the Ohio Supreme Court on women's eligibility
for the bar. Severance helped establish the Ohio Women's Rights Association
before moving to Boston in 1855 and was a founder of women's study and
reform clubs. American National Biography (1999), s.v. "Severance,
Caroline Maria Seymour," by Gayle Gullett.
The Admission
of Women to the Ohio Bar
Page 179
In the House of Representatives, a member offered an amendment
to allow every person over twenty-one years old and of good moral character
to practice law. However, women's rights probably had nothing to do with
the proposal; such a provision would have been in line with the democratic
and anti-lawyer sentiment of the times and could easily have been interpreted
to exclude females. The amendment went no further than referral to a committee,
as the House killed the bill by postponing consideration to the next session
of the legislature. In 1856, with Townshend gone from the Senate, a law
on the admission of attorneys passed both houses, apparently without discussion
of women's right to practice law.35
Townshend was ahead of his time, but as the 1 854 Senate
proceedings show, he was not alone. Three years later, a select committee
of the House, reporting on the property rights of married women, offered
further support for the entry of women into the "various avocations."
The common law deprived married women of virtually all control over their
property and earnings by merging their legal identities into those of
their husbands. Beginning in the late 1830s, many states, including Ohio,
passed married women's property acts that protected the property of wives
from the creditors of their husbands but did not give wives more control
over the property. In the 1850s, thousands of Ohioans petitioned the General
Assembly for recognition of married women's separate rights in property,
and in 1 857 the House select committee strongly urged the passage of
laws to give wives equal property rights with their husbands.36
The committee's report opened with a Lockean disquisition
on the natural right to property resulting from one's labor, but it departed
from Locke in portraying marriage as a partnership of equals. The "true
design of marriage," proclaimed the committee, was "not to sacrifice individual
rights . . . or to deprive either [party] . . . of opportunity for development."
But unjust and oppressive laws made woman a "legal nonentity ... with
no power to direct her energy in her own chosen way, and with no legal
privilege of appropriating the proceeds of her own toil." The committee
recommended
35. Ohio House Journal 51 (1854): 622, 731; Ohio
House Journal 52 (1856): 264, 270, 357, 366-67, 387 (H.B. 83); Ohio
Senate Journal 52 (1856): 318, 370 (H.B. 83). Several states in the
mid-nineteenth century opened the practice of law to adult males with
no other qualification than good character. Lawrence M. Friedman, A
History of American Law, 2nd ed. (New York, 1985), 316-17. In Illinois,
where the law did not expressly limit the practice to males, the state
supreme court read the limitation into the law. See text at note 43, below.
The Ohio Supreme Court may have construed a similar Ohio law in like manner.
See note 34, above.
36. House Select Committee on the Rights of Married Women,
"Report," Ohio House Journal Appendix
53 (1857): 110, 116; James Kent, Commentaries on American Law,
vol. 2 (New York, 1827), 109-21; Amy Dru Stanley,
"Conjugal Bonds and Wage Labor," Journal of American History, 75
(1988), 471, 477; Kermit L. Hall, The Magic Mirror: Law in American
History (New York, 1989), 159; Act of Feb. 28, 1846, 44 Ohio Laws
75.
The Admission
of Women to the Ohio Bar
Page 180
that women be given both the power and the privilege so
that they could develop their "business talent" and pursue the "various
avocations."37
The committee believed that women had the ability to work
in every field and had proved themselves the equal of men in business,
scholarship, and religion. The committee offered as examples of female
success physician Elizabeth Blackwell, astronomer Maria Mitchell, sculptor
Harriet Hosmer, and Mary A. Patton, the wife of a ship's captain who had
taken command when her husband had fallen ill. Abolish inequality of property
rights, said the committee, and "the merely fashionable ladies of the
present day" would become industrious producers of property. Thousands
of women "who, from a mistaken and popular idea of their mission, have
spent their precious gifts and powers for no higher or nobler purpose
than to be the mere toy of man" would turn their education to "a sensible
and practical account." That women would enter the "various avocations"
as "new competitors for preferment" bothered the committee not at all.
The committee did not specifically recommend that women be admitted to
the bar, but its insistence on the natural right of educated, middle-class
women to compete in maledominated professions led logically to that result.
The General Assembly as a whole did not share the select committee's enthusiasm
for women's equality, but it did pass laws augmenting the property rights
of married women and permitting women whose husbands had failed to provide
for them to enter into employment contracts in their own names and to
sue for and collect their own earnings.38
The women's rights movement got sidetracked by the Civil
War, when even zealous feminists agreed that preservation of the Union
and the abolition of slavery had priority. After the war, however, feminists
were divided over whether the campaign for women's rights should be postponed
while equality for blacks was secured. Some were appalled when Congress
put the word "male" into the projected Fourteenth Amendment; fearing that
Southern states would exclude blacks from the franchise, Congress proposed
that any state that excluded from suffrage any adult males except criminals
would not be able to count such males for purposes of representation in
the House of Representatives.39
While Congress deliberately left the legal position of
women untouched by its Reconstruction legislation, it emphasized rights
of labor that consisted with the advance of women into the workforce.
The Civil Rights bill of
37. House Select Committee on Married Women, "Report,"
110-12, 114, 116.
38. Ibid., 113, 116-17; Act of April 17, 1857, 54 Ohio
Laws 219; Act of April 3, 1861, 58 Ohio Laws 54. For a general discussion
of women's rights in Ohio during the period 1850-1870, see Roseboom,
Civil War Era, 230-46.
39. Eleanor Flexner and Ellen Fitzpatrick, Century
of Struggle: The Woman's Rights Movement in the United States (Cambridge,
Mass., 1996), 136-39.
The Admission
of Women to the Ohio Bar
Page 181
1866, passed to protect freedmen from hostile state legislation,
prohibited discriminatory state laws that restricted freedom of contract.
Protesting President Andrew Johnson's veto of the bill, which Congress
soon overrode, Representative William Lawrence of Ohio asserted that the
right to make and enforce contracts was an incident of the inalienable
rights to life, liberty, and property. "It is idle to say that a citizen
shall have the right to life, yet deny to him the right to labor, whereby
alone he can live," Lawrence declared. "It is a mockery to say that a
citizen may have a right to live, and yet deny him the right to make a
contract to secure the privilege and the rewards of labor."40
Lawrence explicitly distinguished between natural rights,
such as the freedom to contract, and the political privilege of suffrage.
Reconstructionera Americans generally made a like distinction between
civil rights, including the right to contract for one's services and to
reap the rewards, and the political rights of voting and holding office.
Women would not benefit from congressional measures to confer political
rights on black men, but they probably profited from the general acknowledgment
of the natural rights of labor. In the two decades after the Civil War,
most states, including Ohio in 1871, passed laws extending to all married
women the right to keep the wages of their separate labor and shielding
the wages of wives from execution by their husbands' creditors. In pressing
for earnings statutes, feminists compared married women to slaves and
demanded for wives the same God-given rights as the freedmen had to work
and to keep the products of their labor. State legislators may have been
motivated more by the needs of working-class families than by philosophical
beliefs when they adopted earnings laws, but the widespread recognition
of the natural right to work and to enjoy one's earnings surely eased
the passage of such acts.41
During Reconstruction, women not only demanded control
over their income, they sought to earn their income in new ways, including
the practice of law. One woman, Myra Bradwell, after being denied admission
to the bar
40. Cong. Globe, 39th Cong., 1st Sess., 1866: 1833.
41. Ibid., 1832; Harold M. Hyman and William M. Wiecek,
Equal Justice Under Law: Constitutional Development, 1835-1875
(New York, 1982), 395-97; Act of March 30, 1871, 68 Ohio Laws 48; Stanley,
"Conjugal Bonds", 483-84. Hyman and Wiecek assert that "[c]oncepts of
fixed natural rights no longer dominated in Congress" at the time of Lawrence's
speech (p. 418), but it is clear from their discussion that civil rights
encompassed natural rights. On the importance of natural law to congressional
Republicans of the Civil War era, see Daniel A. Farber and Suzanne Sherry,
A History of the American Constitution (St. Paul, 1990), 258-7
1, 292-94; Douglas G. Smith, "Natural Law, Article IV, and Section One
of the Fourteenth Amendment," American University Law Review, 47
(December, 1997), 396-99. For the importance of natural rights in Republican
Party thought before and during Reconstruction, see Daniel A. Farber and
Suzanna Sherry, A History of the American Constitution (St. Paul,
1990), 258-71, 292-94; Douglas G. Smith, "Natural Law, Article IV, and
Section One of the Fourteenth Amendment," American University Law Review,
47 (December, 1997), 396-99.
The Admission
of Women to the Ohio Bar
Page 182
by the Illinois Supreme Court, brought her case to the
Supreme Court of the United States under the new Fourteenth Amendment.
Adopted to ensure the political rights of men, the Amendment prohibited
states from abridging "the privileges or immunities of citizens of the
United States" and from denying to "any person" the "equal protection
of the laws"and women were unquestionably citizens and persons.42
The Illinois statute governing admission to the bar did
not explicitly exclude women, but the state court held that the admission
of women had not been intended by the legislators who passed the law.
The court, although rather sympathetic toward Bradwell, also wondered
whether "to engage in the hot strifes of the bar, in the presence of the
public, and with momentous verdicts the prizes of the struggle, would
not tend to destroy the deference and delicacy with which it is the pride
of our ruder sex to treat her."43
Bradwell argued her own case before the Supreme Court
of Illinois. For her appeal to the United States Supreme Court, she obtained
the services of attorney Matthew Hale Carpenter. A few years earlier,
just after the Civil War, Carpenter had represented a Catholic priest
who had challenged a state law that required loyalty oaths of clergymen,
attorneys, and a long list of others who occupied positions of trust in
society. In the course of an opinion striking down the law, Justice Stephen
Field had written: "The theory upon which our political institutions rest
is, that all men have certain inalienable rights; that among these are
life, liberty and the pursuit of happiness; and that, in the pursuit of
happiness, all avocations, all honors, all positions are alike open to
every one, and that in the protection of these rights all are equal before
the law."44
Carpenter now quoted this language to the Court, arguing
that the right to pursue any lawful line of work was a privilege of American
citizenship that could not be denied to whole classes of citizens. The
Court, however, held that the privilege of practicing law was not a function
of citizenship at all and could be regulated by the states as they saw
fit. Furthermore, three justices, including Field, asserted that "nature
herself, has always recognized a wide difference in the respective spheres
and destinies of man and woman.
The natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the occupations of
civil life . . . . The paramount destiny and mission of woman are to
fulfill the noble and benign offices of wife and mother. This is the
law of the Creator."45
42. Minor v. Happersett, 88 U.S. 162 (1874) (holding
that women were citizens but not enfranchised by the Fourteenth Amendment).
43. In re Bradwell, 55 Ill. 535, 542 (1870), aff'd,
83 U.S. 130 (1873).
44. Cummings v. Missouri, 71 U.S. 277, 321-22 (1867).
45. Bradwell v. State, 83 U.S. at 134-35 (counsel
for appellant), 144 (Bradley, I., concurring). Chief Justice Salmon P.
Chase, a former antislavery governor of Ohio, dissented,
The Admission
of Women to the Ohio Bar
Page 183
The Supreme Court did not say that women could not be
lawyers; it simply held that the right to practice was not guaranteed
by the United States Constitution. The states might still do as they pleased.
Bradwell v. Illinois, while a setback for Myra Bradwell personally, had
little effect on the cause of female lawyers in general. Shortly after
the decision, the Illinois legislature allowed women to practice law.
The same thing happened in other jurisdictions where judicial decisions
had gone against female applicants. In yet other states, the courts interpreted
existing laws so as to permit women to join the bar.46
In Tiffin, Ohio, Nettie and Florence Cronise began the
study of law in local offices in 1871. Both sisters gained admission to
the bar without ado in 1873, Nettie in April, Florence in September. The
third Ohio constitutional convention opened one month after Nettie's admission.
This time, unlike in 1850-185 1, the topic of woman suffrage occupied
a great deal of the convention's attention. It was no longer an appendage
to the issue of black suffrage, which had been settled by the Fifteenth
Amendment to the United States Constitution in 1870. The debates, although
extended, hot, and heavy, offered little that had not been said many times
before. Several women's-rights advocates, in their impassioned appeals,
blurred the distinction between natural and political rights, but they
stood no chance of swaying the convention in any event. The report of
the committee on the elective franchise restricted the vote to male citizens;
a proposal to recommit the report with instructions to strike the word
"male" lost, 58-16.47
There was, however, an interesting if very minor sidelight
on the question of female lawyers. Delegate Thomas W. Powell, a lawyer
and leading opponent of woman suffrage, scoffed at the notion of a woman
"with Blackstone . . . on her arm." Powell related the story of a young
man who had been invited for a ride by a young woman and, although perfectly
innocent, soon found himself threatened with a breach-of-promise suit.
Powell had told him that men stood little chance in court in such cases,
that women had taken to shooting men who they thought had abused their
affections, and that the young fellow had better get out of the lawsuit
however he could. Theodore E. Cunningham, also an attorney, declared in
reply that a female lawyer would never have given the young man such
but he was near death and too ill to write an opinion.
For discussions of his dissent, see Harold M. Hyman, The Reconstruction
Justice of Salmon P. Chase: In re Turner and Texas v. White
(Lawrence, Kans., 1997), 162-65, and Richard L. Aynes, "Bradwell v.
Illinois: Chief Justice Chase's Dissent and the 'Sphere of Women's
Work'," Louisiana Law Review, 59 (Winter, 1999),521-41.
46. Drachman, Sisters in Law, 26, 251-53; Jones,
"Robinson's Case," 273-74.
47. Robinson, "Women Lawyers," 23; 1873-74 Proceedings
and Debates, 2:1866, 1872, 1968-69,1971.
The Admission
of Women to the Ohio Bar
Page 184
awful advice. If the client had denied promising to marry
the woman, said Cunningham, a female counselor would have advised him
to "fight her, then, if it takes all winter." Cunningham may have made
his remarks lightheartedly, but no one laughed at the image of a female
lawyer.48
Notwithstanding the admission of the Cronise sisters to
the bar, women in Ohio could not be secure in their right to practice
law. Without an amendment to constitutional or statutory law, their applications
were left to the legal interpretations of different panels of judges.
In 1878, however, the General Assembly, by a vote of 55-30 in the House
and 29-2 in the Senate, prohibited the exclusion of women from the practice
of law "on account of sex." There does not appear to have been much fuss
made over the legislation. The day after passage, the Ohio State Journal,
which covered legislative proceedings, ran an editorial urging lawmakers
to cooperate with the Supreme Court in raising standards for admission
to the bar, but it said nothing about the new statute.49
The admissions statute indicated the great progress in
women's rights since the Salem convention twenty-eight years earlier (although
suffrage still lay beyond the horizon). There may be no way to prove that
the members of the 1 878 General Assembly, in passing the statute, acted
from some conscious devotion to the natural right to pursue happiness
through work in one's chosen field. However, the debate over a similar
statute before Congress at the same time suggests that such sentiments
lay behind the readiness of lawmakers to approve women's admission to
the bar.
In 1874, the United States Court of Claims had refused
to allow Belva Lockwood, a District of Columbia attorney with impeccable
credentials, to practice before it. The court emphasized woman's place
in the family and declared that there was no natural right to practice
law. Two years later, women's-rights advocate and former Ohio congressman
A. G. Riddle moved Lockwood's admission to the bar of the Supreme Court.
By a rule of the Court, any person who was admitted to practice before
the highest court of any state or territory or the District of Columbia
for three years and who maintained good moral character could apply for
admission on motion to the Supreme Court. However, citing "immemorial
usage," the Court turned Lockwood down.50
48. 1873-74 Proceedings and Debates, 2:1833, 1864.
49. Ohio House Journal 74 (1878): 1039-40; Ohio
Senate Journal 74 (1878): 911; Act of May 15, 1878, 75 Ohio Laws 563;
Columbus Daily Ohio State Journal, 16 May 1878.
50. Jill Norgren, "Before It Was Merely Difficult: Belva
Lockwood's Life in Law and Politics," Journal
of Supreme Court History 23, no. 1 (1999), 16; In re Lockwood,
9 Ct. Cl. 346, 351-52, 355 (1874); F.R.B., "Riddle, Albert Gallatin,"
in The Biographical Cyclopaedia and Portrait Gallery with an Historical
Sketch of the State of Ohio, 3:815-24 (1884); Morello, Invisible
Bar, 31-33.
The Admission
of Women to the Ohio Bar
Page 185
Lockwood then took her case to Congress. The House of
Representatives easily passed a bill requiring that any woman who met
the Court's criteria of experience and character be admitted upon application.
The Senate judiciary committee, however, reported back unfavorably on
the ground that the bill would mandate the admission of women while leaving
the admission of men to the Court's discretion. The committee also saw
no necessity for the bill since, as far as it could determine, no law
or rule of court expressly prohibited women from practicing before the
Supreme Court.51
In response to the committee's report, Aaron Sargent of
California, the bill's leading Senate advocate, proposed to amend the
bill to simply preclude exclusion from the bar on the basis of sex. Legislation
was necessary, he said, because the Supreme Court had indeed interpreted
its rule to keep women out. In urging that the bill as amended be recommitted
to the committee, Sargent declared that a woman "has the same right to
life, liberty and the pursuit of happiness and employment, commensurate
with her capacities, as a man has." Women had proved themselves in various
states and territories, he said; the time had passed when the idea of
women in the professions was considered absurd.52
The committee, through Senator Allen G. Thurman of Ohio,
again reported adversely, on the same grounds as before. Its continued
denial of any knowledge that the Supreme Court had excluded women clearly
struck supporters of the bill as disingenuous. Sargent denounced measures
taken by men to limit "the exertions or sphere of woman." "The enjoyment
of liberty, the pursuit of happiness in her own way, is the birthright
of woman as of man," he went on. "In this land, man has ceased to dominate
over his fellow-let him cease to dominate his sister .... It is mere oppression
to say to the bread-seeking woman, you shall labor only in certain narrow
ways for your living." If the bill were defeated, Sargent concluded, women
would be prevented from entering an honorable profession "and earn[ing]
an honest and adequate living." Except for Thurman's oral committee report,
no one spoke in opposition to the bill, which, after some procedural wrangling,
passed in its original form on February 7, 1879, by a nearly two-to-one
margin.53
51. Cong. Rec., 45th Cong., 2nd sess., 1878, 7,
pt. 2: 1235, 1821. For a discussion of Lockwood's
career, including her role in securing passage of the federal act that
abolished sex discrimination in admission to the Supreme Court bar, see
Norgren, "Before It Was Merely Difficult," 16-42.
52. Cong. Rec., 45th Cong., 2nd sess., 1878, 7,
pt. 3: 270'1-05.
53. Ibid., pt. 4: 2704-05; ibid., 3rd sess., 1879, 8,
pt. 2: 1083-84; 20 Statutes at Large 292. The Congressional Record
does not report the vote on Senate passage of the bill. However, the senators
voted 39-20, with 17 absent, to proceed with the third reading.
The Admission
of Women to the Ohio Bar
Page 186
V
After 1880, both advocates and adversaries of women's
admission to the bar relied less and less on natural-rights and natural-law
arguments. With women attending colleges and participating in business
and professional life in rapidly-growing numbers, the idea of separate
spheres had become an obvious anachronism. As a Pennsylvania judge wrote
in admitting a female to the practice of law, the "revolution is over."
Some courts still denied women admission, but they did so on the ground
of common-law tradition, holding that any change would have to come through
legislative action. The legislatures responded favorably, and the legal
barriers fell steadily through the end of the century and beyond.54
With the "revolution" succeeding, supporters of women's
admission to the bar probably saw appeals to natural-rights theory as
unnecessary. (Such appeals could still be useful on occasion, however.
As late as 1893, the Supreme Court of Indiana, in admitting a female to
the bar, declared that the state constitution protected every citizen's
natural right to a "choice of vocations.") Furthermore, suffrage remained
the big battleground of women's rights, overshadowing other issues. The
arguments for suffrage set the tone for the movement as a whole, and advocates
of enfranchisement found that natural-rights arguments were getting them
nowhere. For example, just four years after admitting women to the bar,
the Indiana court denied women the right to vote. Because suffrage was
not a natural right, said the justices, the constitutional guarantee of
the franchise for males had to be read as an exclusion of females. The
court concluded, however, by referring to the "marked intellectual advancement
of women since the adoption of the present constitution" and to the many
questions on which female suffrage might make a difference, questions
which "would advance the morals and lighten the burdens of humanity, would
redeem homes from the wreckful influences of intemperance, and would stay
the mad pace of partisan bias and corruption." This was precisely the
approach increasingly adopted by suffragists themselves, as the natural-rights
argument seemed to be failing them.55
54. Drachman, Sisters in Law, 10, 251-53; Jones,
"Robinson's Case," 50, 269-71; In re Kilgore, 14 Wkly. Notes of
Cases 466, 470 (C.P. Philadelphia 1884). Jones observes that after courts
abandoned natural-law arguments against women in the legal profession,
they turned to arguments based on statutory interpretation as well as
the common law. There was considerable overlap, however, since the courts
tended to determine legislative intent in light of the common law. See,
for example, Robinson's Case, 131 Mass. 376 (1881).
55. In re Leach, 134 Ind. 665, 668-69 (1893); Gougar
v. Timberlake, 148 Ind. 38, 50 (1897); Kraditor, Ideas, 52-74.
Other courts rejected the reasoning of the Indiana court regarding the
admission of women to the bar even when they sympathized with women who
sought to become lawyers. In re Maddox, 93 Md. 727 (1901); In
re Stoneman, 40 Hun 638 (N.Y. App.
The Admission
of Women to the Ohio Bar
Page 187
By the time the fourth Ohio constitutional convention
met in 1912, natural-rights theory had lost its allure among political
scientists and legal commentators. However, scholars have often noted
the "revival" of natural rights in late-nineteenth- and early-twentieth-century
judicial decisions on freedom of contract and the right to pursue a lawful
calling. In a classic case, the Illinois Supreme Court struck down a law
limiting the working hours of female factory hands because it interfered
with women's "natural right to gain a livelihood." But this "conservative"
natural-rights jurisprudence, while not theoretically inconsistent with
support for woman suffrage, was incompatible with measures favored by
progressives, who generally favored extension of the franchise.56 For
example, Ohio courts relied on freedom of contract to invalidate a series
of labor laws and ruled that a maximum-hours law infringed upon the freedom
of contract embodied in the inalienablerights provision of the Ohio Constitution.
In contrast, the Ohio Progressive Party platform of 1914 called not only
for woman suffrage, but for an eighthour day and minimum-wage law for
women, a day of rest for all workers, and "enlargement and perfection"
of the workmen's compensation system.57 Considering the uses their judicial
adversaries had been making of natural rights, progressive advocates of
woman suffrage would surely have hesitated
1886). The Maryland court held that there was no natural
right to practice law. Both the Maryland and New York courts practically
invited legislative action, which quickly ensued in each instance.
56. C. Edward Merriam, A History of American Political
Theories (New York, 1903), 310-11; John E. Keeler, "Survival of the
Theory of Natural Rights in Judicial Decisions," Yale Law Journal,
5 (October, 1895), 14-25; Charles Grove Haines, The Revival of Natural
Law Concepts (Cambridge, Mass., 1930); Roscoe Pound, "The Revival
of Natural Law," Notre Dame Lawyer, 17 (June, 1942), 346-52; William
Wiecek, The Lost World of Classical Legal Thought: Law and Ideology
in America, 1886-1937 (New York, 1998), 124-33; Ritchie v. People,
155 Ill. 98, 112 (1895) ("natural" omitted in the unofficial report of
the decision, 40 N.E. at 458); Michael J. Brodhead, David J. Brewer:
The Life of a Supreme Court Justice, 1837-1910 (Carbondale, Ill.,
1994), 42-43. (Brewer, a Kansas and U.S. Supreme Court justice long regarded
as a leading proponent of conservative laissez-faire constitutionalism
was also a champion of women's rights.) An emphasis on natural rights
would also have embarrassed those suffragists who, in pursuit of Southern
support, had dissociated themselves from the cause of the effectively
disenfranchised blacks of the South. For discussions of the politics of
race and woman suffrage in the early twentieth century, see Kraditor,
Ideas, 163-218; David Morgan, Suffragists and Democrats: The Politics
of Woman Suffrage in America (East Lansing, Mich., 1972), 69-178.
57. State v. Bateman, 10 Ohio Dec. 68, 7 Ohio NP.
487 (1900) (statute prohibiting discharge or threat to discharge employee
for belonging to union); Wheeling Bridge & Terminal Ry. Co. v.
Gilmore, 8 Ohio CC. 658 (1894) (statute requiring additional compensation
for certain railroad employees who worked more than ten hours per day);
State v. Lake Erie Iron Co., Weekly Law Bulletin and Ohio Law Journal,
33 (January 7, 1895), 6-8, aff'd, 51 Ohio St. 632 (1894) (statute requiring
payment of employees twice per month); Marsh Bros. v. C. L. Poston
& Co., Weekly Law Bulletin and Ohio Law Journal, 35 (June 8, 1896),
327-31 (1896), aff'd, 54 Ohio St. 681 (1896) (statute prohibiting payment
in scrip); City of Cleveland v. Clement Bros. Constr. Co., 67 Ohio St.
197 (1902) (maximum-hours law); Columbus Ohio State Journal, 26
August 1914.
The Admission
of Women to the Ohio Bar
Page 188
to base their case on natural rights even if they had
been so inclined.
The delegates at the 1912 constitutional convention argued
strenuously over woman suffrage, but aside from one opponent's lengthy
speech, which consisted mostly of quotes from the Bible meant to show
the divine origin of women's separate sphere, and a brief exchange of
the "is too, is not" variety, no one seriously purported to argue from
natural-rights principles. Proponents of female suffrage appealed to democracy,
fairness, and the tendency of the times. They maintained that women's
participation in politics would result in industrial reform and better
municipal government. The convention agreed to submit a female-suffrage
amendment to the voters, who rejected it, 336,875 to 249,420.58 Ohio women
finally got the right to vote by virtue of the Nineteenth Amendment to
the United States Constitution,59 which passed thanks less to natural-rights
ideas than to the hard-nosed campaign waged by suffragists and the intense
political competition between the major parties.60
But the natural-rights concept had served an important
function in advancing women's rights. It had given women a venerable American
context within which to analyze their condition and a foundation on which
to base their demands. The delegates at the Salem convention and other
women's meetings repeatedly likened their lot to slavery, and it was not
a great leap from the natural right of blacks to labor freely and to keep
the fruits of their efforts to the natural right of women to choose their
vocations. Ohio's state senators came surprisingly close to making that
leap in 1854 when a large minority of them seriously considered opening
the legal
58. Proceedings and Debates of the Constitutional Convention
of the State of Ohio, vol. 1 (Columbus, 1912), 600-03, 605-10, 612,
614,630; vol. 2 (Columbus, 1913), 2113.
59. In accordance with a nationwide trend, Ohio women
received the right to vote in school elections in 1894. Act of April 24,
1894, 91 Ohio Laws 182. After rejecting the first proposed suffrage amendment
in 1912, the voters turned down a second proposed amendment in 1914 by
an even greater margin. Chas. H. Graves, comp., Annual Statistical
Report of the Secretary of State to the Governor and General Assembly
of the State of Ohio for the Year Ending November 15, 1914 (Springfield,
Ohio, 1915), 576. In 1917, the General Assembly passed a law allowing
women to vote in presidential elections. Act of Feb. 21, 1917, 107 Ohio
Laws 7. However, using the progressive reform of the referendum, opponents
resoundingly defeated the law. William D. Fulton, comp., Annual Report
of the Secretary of State to the Governor and General Assembly of the
State of Ohiofor the Year Ending June 30, 1918 (Springfield, Ohio,
1918), 262. On June 16, 1919, the General Assembly passed the law again
and ratified the Nineteenth Amendment. Act of June 16, 1919, 108 Ohio
Laws, pt. 1, at 699; H.J.R. 70, June 16, 1919, 108 Ohio Laws, pt. 2, at
1381. "Presidential suffrage" originated in Illinois, where a statute
granting presidential and municipal suffrage was upheld by the Illinois
Supreme Court. Scown v. Szarnecki, 264 Ill. 305 (1914). Once women could
vote for president, they could and did pressure the national parties for
a federal amendment. Catt and Shuler, Woman Suffrage, 189-93; Morgan,
Suffragists and Democrats, 120; Ellen Carol DuBois, Harriot
Stanton Blatch and the Winning of Woman Suffrage (New Haven, 1997),
184, 323n.1.
60. Morgan, Suffragists and Democrats, 69-178;
DuBois, Blatch, 122-204; Kraditor, Ideas, 219-48.
The Admission
of Women to the Ohio Bar
Page 189
profession to women. The members of the Seneca County
bar did make the jump in 1873 when they welcomed the Cronise sisters to
their ranks. The General Assembly followed by enacting the admissions
statute of 1878. Myra Bradwell's inalienable-rights argument lost out
to the natural law of separate spheres, but in 1 879 Congress recognized
woman's inalienable right to "the pursuit of happiness in her own way."
The force of the naturalrights argument would soon be spent, but not before
opening a wedge into the lawyer's world and helping to bring about a "revolution"
at the bar. Woman suffrage would not be achieved through natural-rights
arguments, as the women of Salem had hoped, but the successful participation
of women in the masculine world of law, accomplished with the help of
natural-rights ideas, helped undermine the case for their exclusion from
politics.
|