Ohio History Journal


Gold
Summer-Autumn 2001
pp. 165-189
Copyright 2001 by the Ohio Historical Society. All rights reserved.
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Natural Rights and the Admission of Women

to the Ohio Bar

By David M. Gold


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).


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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 way—neither 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


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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


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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 nature—that 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.


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when there is no government—all 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 Government—Popular Sovereignty, Natural Rights, and Balance & Separation of Powers (Bloomington, Ind., 1974), 97.

13. Locke, Two Treatises, 321.


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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 equal—that 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.


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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


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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,


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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.


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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.


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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 suffrage—for 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.


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"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 position—their happiness—the effect of marriage on their legal rights—and 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.


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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.


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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 court—judge, juror, prosecutor, defense lawyer—was 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.


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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.


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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.


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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.


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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,


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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.


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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.


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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.


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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.


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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.


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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
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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.