Bradwell v. The State - 83 U.S. 130 (1872)
U.S. Supreme Court
Bradwell v. The State, 83 U.S. 16 Wall. 130 130 (1872)
Bradwell v. The State
83 U.S. (16 Wall.) 130
1. The Supreme Court of Illinois having refused to grant to a woman 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. Held that such a decision violates no provision of the federal Constitution.
2. The second section of the fourth article is inapplicable, because the plaintiff was 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 Fourteenth Article of amendment of the Constitution 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 Fourteenth Amendment, and this Court cannot inquire into the reasonableness or propriety of the rules it may prescribe.
Mrs. Myra Bradwell, 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 asserting that, under the foregoing facts, she was entitled to the license prayed for by virtue of the second section of the fourth article of the Constitution of the United States, and of the fourteenth article of amendment of that instrument.
The statute of Illinois on the subject of admissions to the bar, enacts that no person shall be permitted to practice as an attorney or counselor at law, or to commence, conduct, or defend any action, suit, or complaint, in which he is not a party concerned, in any court of record within the 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 some two of the 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 the state, and there to practice as an attorney and counselor at law, according to the laws and customs thereof.
On Mrs. Bradwell's application first coming before the court, the license was refused, and it was stated as a sufficient reason that under the decisions of the Supreme Court of Illinois, the applicant --
"as a married woman would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client."
After the announcement of this decision, Mrs. Bradwell, admitting that she was a married woman -- though she expressed her belief that such fact did not appear in the record -- filed a printed argument in which her right to admission, notwithstanding that fact, was earnestly and ably maintained. The court thereupon gave an opinion in writing. Extracts are here given:
"Our statute provides that no person shall be permitted to practice as an attorney or counselor at law without having previously obtained a license for that purpose from two of the justices of the Supreme Court. By the second section of the act, it is provided that no person shall be entitled to receive a license until he shall have obtained a certificate from the court of some county of his good moral character, and this is the only express limitation upon the exercise of the power thus entrusted to this Court. In all other respects it is left to our discretion to establish the rules by which admission to this office shall be determined. But this discretion is not an arbitrary one, and must be held subject to at least two limitations. One is that the
court should establish such terms of admission as will promote the proper administration of justice; the second that it should not admit any persons or class of persons who are not intended by the legislature to be admitted, even though their exclusion is not expressly required by the statute."
"The substance of the last limitation is simply that this important trust reposed in us should be exercised in conformity with the designs of the power creating it."
"Whether, in the existing social relations between men and women, it would promote the proper administration of justice, and the general well being of society, to permit women to engage in the trial of cases at the bar, is a question opening a wide field of discussion, upon which it is not necessary for us to enter. It is sufficient to say that, in our opinion, the other implied limitation upon our power, to which we have above referred, must operate to prevent our admitting women to the office of attorney at law. If we were to admit them, we should be exercising the authority conferred upon us in a manner which, we are fully satisfied, was never contemplated by the legislature."
"It is to be remembered that at the time this statute was enacted we had, by express provision, adopted the common law of England, and, with three exceptions, the statutes of that country passed prior to the fourth year of James the First, so far as they were applicable to our condition."
"It is to be also remembered that female attorneys at law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of bishops, or be elected to a seat in the House of Commons."
"It is to be further remembered that when our act was passed, that school of reform which claims for women participation in the making and administering of the laws had not then arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action."
"That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth."
"In view of these facts, we are certainly warranted in saying
that when the legislature gave to this Court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women."
The court having thus denied the application, Mrs. Bradwell brought the case here as within the twenty-fifth section of the Judiciary Act, or the recent act of February 5, 1867, amendatory thereto; the exact language of which may be seen in the Appendix.