Bradwell v. Illinois

(See S. C. 16 Wall. 130–142.)

* 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 Constitution.

2. The 2d section of the 4th article is inapplicable, because plaintiff is a citizen of the state whose action she complains, and that section only other states, in that state.

3. Nor is the right to practice law in the state courts a privileges and immunity of a citizen of the United States within the meaning of the 1st section of the 14th article of Amendment of the Constitution of the United States.

4. The power of a state to prescribe the qualifications for admissions to the bar of its own courts, is unaffected by the 14th Amendment, and this court cannot inquire into the reasonableness or properly of the rules it may be prescribe.

[No. 12.]

Argued Jan. 18, 1873. Decided Apr. 15, 1873.

In Error to the Supreme Court of the State of Illinois.

The petition in this case was filed in the court below, by the plaintiff in error, for license to practice law. The said application having been denied, the petitioner sued out this writ of error.

The case is stated by the court.

Mr. Matt. H. Carpenter, for plaintiff in error:

The plaintiff in error is a married woman, of full age, a citizen of the United States, and of the state of Illinois; was ascertained and certified to be duly qualified in respect to character and attainments; but was denied admission to the bar for the sole reason that she was a married woman. This is the error relied upon to reverse the proceedings below.

By the rules of this court, no person can be admitted to practice at the bar without service for a fixed term in the highest court of the state in which such person resides. Consequently a denial of admission in the highest court of the state is an insurmountable obstacle to admission to the bar of this court.

This record, therefore, presents the broad question whether a married woman, being a citizen of the United States and of a state, and possessing the necessary qualifications, is entitled by the Constitution of the United States to be admitted to practice as an attorney and counselor at law in the courts of the state in which she resides. This is a question, not taste, propriety or politeness, but of civil right.

I have more faith in female suffrage, to reform the abuse of our election system in the large cities, than I have in the penal election laws to be enforced by soldiers and marines. Who believes that if ladies were admitted to seats in Congress, or upon the bench, or were participating in discussions at the bar, such proceedings would thereby be rendered less refined, or that less regard would be paid to the rights of all?

But whether women should be admitted to right of suffrage is one thing and whether this end has already been accomplished is quite another. The 14th Amendment forbids the states to make or enforce any law which shall abridge the privileges or immunities of a citizen. But whether the right to vote is covered by the phrase "the privileges and immunities" was much discussed under the provisions of the old Constitution; and at least one of the earliest decisions drew a distinction between "privileges and immunities" and political rights. On the other hand, Mr. Justice Washington, in a celebrated case, expressed the opinion that the right to vote and hold office was included in this phrase. But in neither of the cases was this point directly involved, and both opinions are obiter dicta in relation to it.

But the 14th and 15th 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 14th Amendment declares "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 decisions: "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 cannot be abridged, then, of course, the privileges and immunities of all citizens must be the same. The 2d 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 an election, etc., 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 cannot 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 2d section; from which it follows that the right to vote is not one of the privileges and immunities which the 1st section declared shall not be abridged by any state.

The 14th 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 Constitution, 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 follows that the privileges of all citizens are the same.

The 14th and 15th Amendments distinguish between privileges and rights, and it must be confessed that it is paradoxical to say, as the 14th 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 Constitution is wholly different from a mere exercise is philology. The question is not whether certain words are 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 14th Amendment to prohibit a state from abridging them; and it is equally evident from the 14th Amendment that the right to vote is not one of those privileges. And the question recurs, whether or not admission to the bar, the proper qualification being possessed, is one of the privileges which a state may not deny.

In Cummings v. Mo. 4 Wall. 321, 18 L. ed. 362, this court says:

"In France, deprivation or suspension of the civil rights or some of them—and among these 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 institutions rest is, that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness, all avocations, all honors, all positions are alike open to every one, and that in the protection of these rights are all 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, 18 L. ed. 370, this court says:

"The profession of an attorney and counselor is not, like an office, created by 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 Constitution. Attorneys and counselors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution 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; … 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 v. Daingerfield, 20 Cal. 430.

"Their admissions or their exclusion is not the exercise of a mere ministerial power. It is exercise of judicial power, and has been so held in numerous cases."

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. In re Cooper, 22 N. Y. 67, Strother v, Mo. 1 Mo. 005; Ex parte Secombe, 19 How. 9, 15 L. ed. 565; Ex parte Garland, supra.

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, it cannot, under the guise of fixing qualifications, exclude a class 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 class of citizens can never 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. I presume it will be admitted that such an act would be void. The only provisions in the Constitution 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 the provision that "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens." If this provision protects 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 its opinion found in the record says: "Of the ample qualifications of the applicant we have no doubt." Still, admission to the bar was denied the petitioner; not upon the ground that she was not a citizen; not for want of age or qualification; not because the profession of the law is not one of those avocations which are open to every American citizen as a 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 14th Amendment in the full and proper operation, now that it has been adopted.

I maintain that the 14th 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.

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 Constitution is over all, and protects each in that measure of success which his or her individual merits may secure.

(No counsel appeared for the defendant in error.)

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 petition 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 entitled to the license paid for, by virtue of the 2d section of the 4th article of the Constitution of the United States, and of the 14th article of Amendment of that instrument.

The statute of Illinois on this subject enacts that no person shall be permitted to practice as an attorney or counselor at law, or the commence, conduct, or defend any action, suit, or plaint, in which he is not a party concerned, in any court of record within this state, either by using or subscribing his own name or the name of any other person, without having previously obtained a license for that purpose from two justices of the supreme court, which license shall constitute the person receiving the same an attorney and counselor at law, and shall authorize him to appear in all the courts of record within this state and there to practice as an attorney and counselor at law according to the laws and customs thereof.

The supreme court denied the application apparently upon the ground that it was a woman who made it.

The record is not very perfect, but it may be fairly taken that the plaintiff asserted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the state of Illinois, entitled to any right granted to citizens of the latter state.

The court having overruled these claims of right founded on the clauses of the Federal Constitution before referred to, those propositions may be considered as properly before this court.

As regards the provision of the Constitution that citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable.

The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the state whose laws are complained of. If the plaintiff was a citizen of the state of Illinois, that provision of the Constitution gave her no protection against its courts or it legislation.

The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont.

While she remained in Vermont that circumstance made her a citizen of that state. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the state of Illinois.

The 14th Amendment declares that citizens of the United States are citizens of the state within which they reside; therefore the plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the state of Illinois.

We do not here mean to say that there may not be a temporary residence in one state, with intent to return to another, which will not create citizenship in the former. But plaintiff states nothing to take her case out of the definition of citizenship of a state as defined by the 1st section of the 14th Amendment.

In regard to that Amendment counsel for the plaintiff in this court truly says that there are certain privileges and immunities which belong to a citizen in the United States as such; otherwise it would be nonsense for the 14th Amendment to prohibit a state from abridging them, and he proceeds to argue that admission to the bar of a state, of a person who possesses the requisite learning and character, is one of those which a state may not deny.

In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a state is forbidden to abridge. But the right to admission to practice in the courts of a state is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any state or in any case to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the state and Federal courts, who were not citizens of the United States or of any state. But, on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a state, it would relate to citizenship of that state, and as to Federal courts, it would relate to citizenship of the United States.

The opinion just delivered in the Slaughter-House Cases, from Louisiana, ante, 394, renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a state is one of those powers which are not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the partly seeking such license.

It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say, they are conclusive of the present case.

The judgment of the State Court is, therefore, affirmed.

Mr. Justice Bradley:

I concur in the judgment of the court in this case, by which the judgment of the supreme court of Illinois is affirmed, but not for reason specified in the opinion just read.

The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counselor at law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The supreme court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect, but had simply provided that no person should be submitted to practice as attorney or counselor without having previously obtained a license for that purpose from two justices of the supreme court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons or class of person not intended by the legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminister Hall from time immemorial, it could not be supposed that the legislature had intended to adopt any different rule.

The claim that, under the 14th Amendment of the Constitution, which declares that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, and the statute law of Illinois, or the common law prevailing in that state, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation or employment in civil life.

It certainly cannot be affirmed, as a historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, 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 interests 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 the 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. This very incapacity was one circumstance which the supreme court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. 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. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupation adapted to her condition and sex, have my heartiest concurrence. But I am prepared to say that is one of her fundamental rights and privileges to be admitted into every office and position. It is not every citizen of every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the state; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which presumed to predominate in the sterner sex.

For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.

Mr. Justice Field and Mr. Justice Swayne; We concur in the opinion of Mr. Justice Bradley.

Dissenting, Mr. Chief Justice Chase.