Roger writing the LAWmag
08
Nov 2008

Sisters In Law

Sam Walter Foss' poem the Golden Calf says it best when he speaks eloquently of the pitfalls of ignoring the opening whisper of any EA Sports computer game: Challenge Everything!Challenge Everything!

Thinking outside the box is not just a new expression; it is a long overdue and novel concept.

The law is not shielded from progress and innovation but it remains staunchly conservative, always twenty years or so behind public opinion. Or, in those rare jurisdictions where political leadership prevails, just a few months behind public interest.

In any event: plodding and slow.

The law prides itself in being unalterable. While nothing can excuse the long delay in abolishing slavery and extending basic human rights, at least in free and democratic societies of the world, one area of the law's foot-dragging is notable if for no other reason that it affected half the world's population.

The first licensed woman lawyer was not the Jewish Queen in the deserts of Canaan, Deborah. Neither did she rise to glory in the reign of Hammurabi. Not even Cicero's Rome, with the early flames of democracy illuminating their parliamentary deliberation even considered the idea of women lawyers. While England and other European countries accepted the occasional Queen, the common law's omission of female barristers, solicitors, lawyers or attorneys, the courts surmised, was intentional. Margaret Brent, it seems, due to the ad hoc circumstances in which she was before the Maryland courts in the mid-1600s was but a blip on the radar screen.

It was a disgracefully late year in human history, a scant two generations ago, 1868 to be exact, that the world witnessed not only a female graduate from law school, but taking the oath of office of a court of the land.

The tale of the three sisters in law, Belle Mansfield, Charlotte Ray and Belva Lockwood, and their certifications one after another in a four year span, in Iowa and the District of Columbia were the first leaks in the floodgates.

But there were many pot-holes. When renowned Chicago legal publisher Myra Bradwell passed law school and the Illinois bar exams, she still faced an Illinois court that refused to swear her in. She brought the case to the US Supreme Court where she lost, the judicial sentiment being that allowing women to be lawyers might: "... endanger the delicacy of the female sex."

The following words of the decidedly Republican judge Joseph P. Bradley (1813-1892) of the US Supreme Court in Bradwell v The State of Illinois should come with a warning rating of R ... for repugnant. It is worth forcing oneself to read it because if we do not mark our path out of the forest, we risk losing our bearings:

R rating"The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.

"Man is, or should be, woman's protector and defender. 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 constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.

"So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him."

Belle Mansfield statuteIn the very city where Justice Bradley sat, Washington, DC, Charlotte Ray found that a license was not enough. She could not get any clients so she retreated to a safer career of teaching, as did Mansfield.

The floodgates could not hold. Wary of the words of Oliver Cromwell, that "necessity hath no law", everywhere in the USA, state bars began to change their rules and license women and many of them emulated Belva Lockwod's examples of a feisty and successful law career, justifying the words printed in the New York Express on the occasion of Mansfield's certification:

"In certain branches of legal practice, women could be quite as effective as men – perhaps more valuable as counselors. In chamber practice, rather than as pleaders at the bar, they in many cases might excel male lawyers."

Or the editorial in the fledging American women's right journal Revolution:

"The Bar has surrendered. Woman carried medicine and ministry long ago. And now the legal profession is hers";

Then, with their American recognition in law spread by way of telegraph wire, women in other countries were, finally, called to the bar:

  • 1897, Canada • Clara Martin and the first in the British Empire
  • 1897, New Zealand • Ethel Banjamin
  • 1900, France • Jeanne Sauvin

Now, each state and provincial bar association celebrates their own women pioneers, with glossy black and white photographs of the heroines gracing their web pages, lending their names to some annual bar prize or an image of their statute adorning a law blog article, like that of Mansfield, right.

There are three women to every two men presently attending Canadian law schools.

In the membership statistics of most North American law societies and bar associations, women are in a majority or at par with men. Women lawyers have their own law journals (eg. Harvard Journal of Law and Gender) and organizations such as the American Bar Association's permanent Commission on Women in the Profession.

It has been but 48 hours since America elected its first ever Black president, Barack Obama. Already, he has spoken of a changing world. Other challenges hover not the least of which is the economy and the environment.

But allowing the Lockwoods, Rays and Mansfields into the kitchens of the law  may have been humanity's smartest move yet. Remembering and honoring their presence helps us guard against the path of the Golden Calf that prevented them from being lawyers in the first place:

For men are prone to go it blind, along the calf-paths of the mind,
And toil away from sun to sun, to do what other men have done.

They follow in the beaten track, and out and in, and forth and back,
And still their devious course pursue, to keep the path that others do.

REFERENCES:

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