The History of Woman Suffrage Volume II Part 81

But the XIV. and XV. Amendments seem to settle this question against the right of female suffrage. These amendments seem to recognize the distinction at first pointed out between "privileges and immunities," and the right to vote. The XIV.

Amendment declares,

[Ill.u.s.tration: Myra Bradwell.]

All persons born and naturalized in the United States, etc., are citizens of the United States, and of the State wherein they reside.

Of course, women, as well as men, are included in this provision, and recognized as citizens. This Amendment further declares:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

If the privileges and immunities of a citizen can not be abridged, then, of course, the privileges and immunities of all citizens must be the same. The second section of this Amendment provides that

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians, not taxed. But when the right to vote at any election, etc., is denied to any of the male inhabitants, being twenty-one years of age, etc., the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

It can not be denied, that the right or power of a State to exclude a portion of its male citizens from the right to vote, is recognized by this second section; from which it follows, that the right to vote is not one of the "privileges or immunities"

which the first section declares shall not be abridged by any State. The right of female suffrage is also inferentially denied by that provision of the second section, above quoted, which provides that when a State shall deny the right to vote to any male citizen,

The basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens in such State.

In the first place, it is to be observed that the basis of representation in a State, which is the whole number of persons--male and female, adults and infants--is only to be reduced when the State shall exclude a portion "of the male inhabitants of such State." The exclusion of female inhabitants, and infants under the age of twenty-one years, does not effect a reduction of the basis of representation in such State. And, again, when a State does exclude a portion of its male inhabitants, etc., the basis of representation in such State is not reduced in the proportion which the number of such excluded males bears to the number of persons--male and female--in such State; but only

In the proportion which the number of such (excluded) male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This provision a.s.sumes that females are no part of the voting population of a State. The XV. Amendment is equally decisive. It recognizes the right--that is, power--of any State to exclude a portion of its citizens from the right to vote, and only narrows this right in favor of a particular cla.s.s. Its language is:

The right of citizens of the United States to vote shall not be denied or abridged, etc., on account of race, color, or previous condition of servitude.

This amendment was wholly unnecessary upon the theory that the XIV. Amendment had established or recognized the right of every citizen to vote. It recognizes the right of a State to exclude a portion of its citizens, and only restrains that power so far as to provide that citizens shall not be excluded on account of race, color, or previous condition of servitude. In every other case, the power of exclusion recognized by the XIV. Amendment is untouched by the XV. It is also worthy of notice that, throughout the XIV. and XV. Amendments, voting is not treated as, or denominated a privilege, and evidently was not intended to be, nor regarded as included in the "privileges or immunities" of a citizen, which no State can abridge for any cause whatever. I have taken this pains to distinguish between the "privileges and immunities" of a citizen, and the "right" of a citizen to vote, not because I feared that this court would deny one, even if the other would follow, but to quiet the fears of the timid and conservative.

I come now to the narrower and precise question before the court: Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the XIV. Amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court? It was provided by the original Const.i.tution:

The citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States.

Under this provision each State could determine for itself what the privileges and immunities of its citizens should be. A citizen emigrating from one State to another carried with him, not the privileges and immunities he enjoyed in his native State, but was ent.i.tled, in the State of his adoption, to such privileges and immunities as were enjoyed by the cla.s.s of citizens to which he belonged by the laws of such adopted State.

A white citizen of one State, where no property qualification for voting was required, emigrating to a State which required such qualification, must conform to it before he could claim the right to vote. A colored citizen, authorized to hold property in Ma.s.sachusetts, emigrating to South Carolina, where all colored persons were excluded from such right, derived no aid, in this respect, from the Const.i.tution of the United States, but was compelled to submit to all the incapacities laid by the laws of that State upon free persons of color born and residing therein.

A married woman, a citizen of the State of Wisconsin, where by law she was capable of holding separate estate, and making contracts concerning the same, emigrating to a State where the common law in this regard prevailed, could not buy and sell property in her own name, or contract in reference thereto.

But the XIV. Amendment executes itself in every State of the Union. Whatever are the privileges and immunities of a citizen in the State of New York, such citizen, emigrating, carries them with him into any other State of the Union. It utters the will of the United States in every State, and silences every State const.i.tution, usage, or law which conflicts with it. If to be admitted to the bar, on attaining the age and learning required by law, be one of the privileges of a white citizen in the State of New York, it is equally the privilege of a colored citizen in that State; and if in that State, then in any State. If no State may "make or enforce any law" to abridge the privileges of a citizen, it must follow that the privileges of all citizens are the same. We have already seen that the right to vote is not one of those privileges which are declared to be common to all citizens, and which no State may abridge; but that it is a political right, which any State may deny to a citizen, except on account of race, color, or previous condition of servitude. It therefore only remains to determine whether admission to the bar belongs to that cla.s.s of privileges which a State may not abridge, or that cla.s.s of political rights as to which a State may discriminate between its citizens.

In discussing this subject, we are compelled to use the words "privileges and immunities" and the word "rights" in the precise sense in which they are employed in the Const.i.tution. In popular language, and even in the general treatises of law writers, the words "rights" and "privileges" are used synonymously. Those privileges which are secured to a man by the law are his rights; and the great charter of England declares that the ancient privileges enjoyed by Englishmen, are the undoubted rights of Englishmen. But, as we have seen, the XIV. and XV. Amendments distinguish between privileges and rights; and it must be confessed that it is paradoxical to say, as the XIV. Amendment clearly does, that the "privileges" of a citizen shall not be abridged, while his "right" to vote may be. But a judicial construction of the Const.i.tution is wholly different from a mere exercise in philology. The question is not whether certain words were aptly employed--but the context must be searched to ascertain the sense in which such words were used.

It is evident that there are certain "privileges and immunities"

which belong to a citizen of the United States as such; otherwise it would be nonsense for the XIV. Amendment to prohibit a State from abridging them; and it is equally evident from the XIV.

Amendment that the right to vote is not one of those privileges.

And the question recurs whether admission to the bar, the proper qualification being possessed, is one of the privileges which a State may not deny. In c.u.mmings _vs._ Missouri, 4 Wall., 321, this court say:

In France, deprivation or suspension of civil rights, or some of them--and among these of the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning--are punishments prescribed by her code. The theory upon which our political inst.i.tutions 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. Any deprivation or extension of any of these rights for past conduct is punishment, and can be in no otherwise defined.

No broader or better enumeration of the privileges which pertain to American citizenship could be given. "Life, liberty, and the pursuit of happiness; and, in the pursuit of happiness, all avocations, all honors, all positions, are alike open to every one; and in the protection of these rights all are equal before the law." In _ex parte_ Garland (4 Wall., 378) this court say:

The profession of an attorney and counselor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Const.i.tution.

Attorneys and counselors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Const.i.tution for the election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character.... The order of admission is the judgment of the court, that the parties possess the requisite qualifications as attorneys and counselors, and are ent.i.tled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunity to be heard has been offered. (_Ex parte_ Heyfron, 7 How., Miss., 127; Fletcher _vs._ Daingerfield, 20 Cal., 430.) Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases....

The attorney and counselor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the Legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency. The Legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of the ordinary avocations of life.

It is now well settled that the courts, in admitting attorneys to, and in expelling them from, the bar, act judicially, and that such proceedings are subject to review on writ of error or appeal, as the case may be. (_Ex parte_ Cooper, 22 N. Y., 67.

Strother _vs._ Missouri, 1 Mo., 605. _Ex parte_ Secomb, 19 How., 9. _Ex parte_ Garland, 4 Wall., 378.)

From these cases the conclusion is irresistible, that the profession of the law, like the clerical profession and that of medicine, is an avocation open to every citizen of the United States. And while the Legislature may prescribe qualifications for entering upon this pursuit, they can not, under the guise of fixing qualifications, exclude a cla.s.s of citizens from admission to the bar. The Legislature may say at what age candidates shall be admitted; may elevate or depress the standard of learning required. But a qualification, to which a whole cla.s.s of citizens never can attain, is not a regulation of admission to the bar, but is, as to such citizens, a prohibition. For instance, a State Legislature could not, in enumerating the qualifications, require the candidate to be a white citizen. This would be the exclusion of all colored citizens, without regard to age, character, or learning. Such an act would abridge the rights of all colored citizens, by denying them admission into one of the avocations which this court has declared is alike open to every one. I presume it will be admitted that such an act would be void. I am certain this court would declare it void. And I challenge the most astute mind to draw any distinction between such an act and a custom, usage, or law of a State, which denies this privilege to all female citizens without regard to age, character, or learning. If the Legislature may, under pretense of fixing qualifications, declare that no female citizen shall be permitted to practice law, they may as well declare that no colored citizen shall practice law. It should be borne in mind that the only provision in the Const.i.tution of the United States which secures to colored male citizens the privilege of admission to the bar, or the pursuit of the other ordinary avocations of life, is that provision that

No State shall make or enforce any law which shall abridge the privileges or immunities of a citizen.

If this provision does not open all the professions, all the avocations, all the methods by which a man may pursue happiness, to the colored as well as the white man, then the Legislatures of the States may exclude colored men from all the honorable pursuits of life, and compel them to support their existence in a condition of servitude. And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female. Why may a colored citizen buy, hold, and sell land in any State of the Union? Because he is a citizen of the United States, and that is one of the privileges of a citizen.

Why may a colored citizen be admitted to the bar? Because he is a citizen, and that is one of the avocations open to every citizen; and no State can abridge his right to pursue it. Certainly no other reason can be given.

Now, let us come to the case of Myra Bradwell. She is a citizen of the United States, and of the State of Illinois, residing therein; she has been judicially ascertained to be of full age, and to possess the requisite character and learning. Indeed, the court below, in their opinion, found in the record, page 9, say: "Of the ample qualifications of the applicant we have no doubt."

Still, admission to the bar was denied the pet.i.tioner, not upon the ground that she was not a citizen; not for want of age or qualifications; not because the profession of the law is not one of those avocations which are open to every American citizen as matter of right, upon complying with the reasonable regulations prescribed by the Legislature: but upon the sole ground that inconvenience would result from permitting her to enjoy her legal rights in this, to wit, that her clients might have difficulty in enforcing the contracts they might make with her, as their attorney, because of her being a married woman.

Now, with entire respect to that court, it is submitted that this argument _ab inconvenienti_, which might have been urged with whatever force belongs to it, against adopting the XIV. Amendment in the full scope of its language, is utterly futile to resist its full and proper operation, now that it has been adopted.

Concede, for argument, that the XIV. Amendment ought to have read thus:

No State shall make or enforce any law which shall abridge the privileges or immunities of any citizens except married women;

yet that exception is not found in the sweeping provision of this amendment. It is provided that citizens may be disfranchised for treason; but it is nowhere provided that a citizen shall be disfranchised for being a married woman. The opinion of the court below puts a limitation upon this unlimited const.i.tutional provision. If this court shall approve this exception, in the very teeth of the unambiguous language of the Const.i.tution, where may we expect judicial legislation to stop? Can this court say that married women have no rights that are to be respected? Can this court say that, when the XIV. Amendment speaks of all persons, etc., and declares them to be citizens, it means all male persons and unmarried females? Or can this court say that, when the XIV. Amendment declares "the privileges of no citizen shall be abridged," it means that the privileges of no male citizen or unmarried female citizen shall be abridged? This would be bold dealing with the const.i.tutional provision. It would be excluding a large proportion of the citizens of the United States from privileges which the Const.i.tution declares shall be the inheritance of every citizen alike.

But it is respectfully submitted that the court below erred in holding that a married woman, admitted to the bar under the XIV.

Amendment, would not be liable on contracts, express or implied, between her and her clients. In Wisconsin, when the Legislature pa.s.sed the act protecting married women in the enjoyment of their separate estate, our court, upon reasoning that can not be gainsaid, held that the Legislature must have intended all the natural and logical results of the act in question; and, therefore, that the contracts of a married woman, relating to her separate estate, were as binding as if made by a _feme sole_. It is submitted that, for still stronger reasons, the great innovation of the XIV. Amendment should be carried to its logical conclusion, and that it sweeps away the principles of the common law, as it does the express provisions of State const.i.tutions and statutes.

But again: Mrs. Bradwell, admitted to the bar, becomes an officer of the court, subject to its summary jurisdiction. Any malpractice or unprofessional conduct towards her client would be punishable by fine, imprisonment, or expulsion from the bar, or by all three. Her clients would, therefore, not be compelled to resort to actions at law against her. But if the courts of Illinois should refuse to exercise this summary jurisdiction, and should hold that actions at law could not be maintained on contracts between her and her clients, it might result that she would not be as generally employed as she otherwise would be. But that is no reason why she should be prohibited from appearing and trying causes for clients who are willing to rely upon her integrity and honor.

But let it not be supposed that, in trying to answer as to the inconveniences imagined by the court below, I am at all departing from the broad ground of const.i.tutional right upon which I rest this cause. I maintain that the XIV. Amendment opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life; and that no citizen can be excluded from any one of them. Intelligence, integrity, and honor are the only qualifications that can be prescribed as conditions precedent to an entry upon any honorable pursuit or profitable avocation, and all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters. The inequalities of s.e.x will undoubtedly have their influence, and be considered by every client desiring to employ counsel.

There may be cases in which a client's rights can only be rescued by an exercise of the rough qualities possessed by men. There are many cases in which the telling sympathy and the silver voice of woman would accomplish more than the severity and sternness of man could achieve. Of a bar composed of men and women of equal integrity and learning, women might be more or less frequently retained, as the taste or judgment of clients might dictate. But the broad shield of the Const.i.tution is over them all, and protects each in that measure of success which his or her individual merits may secure.

SUPREME COURT OF THE UNITED STATES. _December Term_, 1872. Myra Bradwell, Plaintiff in Error, _vs._ the State of Illinois. In error to the Supreme Court of the State of Illinois.

1. The Supreme Court of Illinois having refused to grant to plaintiff a license to practice law in the courts of that State, on the ground that females are not eligible under the laws of that State, such a decision violates no provision of the Federal Const.i.tution.

2. The second section of the fourth article is inapplicable, because plaintiff is a citizen of the State of whose action she complains, and that section only guarantees privileges and immunities to citizens of other States, in that State.

3. Nor is the right to practice law in the State courts a privilege or immunity of a citizen of the United States, within the meaning of the first section of the XIV. Article of Amendment of the Const.i.tution of the United States.

4. The power of a State to prescribe the qualifications for admission to the bar of its own courts is unaffected by the XIV. Amendment, and this court can not inquire into the reasonableness or propriety of the rules it may prescribe.

Mr. Justice MILLER delivered the opinion of the Court.

The plaintiff in error, residing in the State of Illinois, made application to the judges of the Supreme Court of that State for a license to practice law. She accompanied her pet.i.tion with the usual certificate from an inferior court of her good character, and that on due examination she had been found to possess the requisite qualifications. Pending this application she also filed an affidavit, to the effect "that she was born in the State of Vermont; that she was (had been) a citizen of that State; that she is now a citizen of the United States, and has been for many years past a resident of the city of Chicago, in the State of Illinois." And with this affidavit she also filed a paper claiming that, under the foregoing facts, she was ent.i.tled to the license prayed for by virtue of the second section of the fourth article of the Const.i.tution of the United States, and of the XIV.

Article of Amendment of that instrument.