Early Women Lawyers: The struggle of Mrs. Carrie B. Kilgore

This article ran in THE NATION on May 8th 1884.



WOMEN AT THE BAR.

The struggle of Mrs. Carrie B. Kilgore for admission to the bar has finally ended in a rather curious victory. She has for two years been going about from one court to another with a diploma as bachelor of laws, granted her by the University of Pennsylvania, insisting that the laws of that State give her the right to admission. These statutes, like those of most other States, say nothing about the sex of lawyers, and only require that the applicant should be “of an honest disposition and learned in the law.” Judges, however, have hitherto been unanimous, or nearly so, in the opinion that the uniform practice and custom of the modern world in confining the practice of the law to men ought to govern in the interpretation of such statutes, and that the only proper way to change the custom is by an act of the Legislature. Three separate courts in Philadelphia have taken this view, and if there was any doubt as to its correctness a very slight examination of the opinion of Judge Thayer, who has finally admitted Mrs. Kilgore, would be enough to remove it.

He disposes of the numerous decisions with regard to the proper interpretation of the statutes by declaring that he does not see how a custom can arise out of a “mere negation,” which is certainly a funny way for a judge to overrule his brethren on the bench; he then declines to enter into a controversy on the subject of women’s rights,” and finally decides the case on the following grounds: First, that “if there is any longer any such thing as what old-fashioned philosophers and essayists used to call the sphere of woman, it must now be admitted to be a sphere with an infinite and indeterminable radius” ; that she is “found in all the pursuits and professions of life”; that persons who talk of her admission to these with apprehension as of “an impending social change,” are asleep, and ought to “awake from their slumbers” and recognize the fact that “the revolution is over”; and finally, that it would not be in the line of a “wise judicial discretion” to attempt to “turn backward the Wheel of Time to convince history that it is all wrong, and to say at this time of day that woman shall not be permitted to pursue the vocation that suits her taste, and for which her studies have qualified her,”

It will be seen that what Judge Thayer has really done is, not indeed to go into a discussion of woman’s right to admission to the bar, but to assume that it is all settled, and that the customs of modern society allow her to engage in any calling she may like. If this is a correct view, the statutes relating to admission to the bar must be interpreted in the light of these customs, and by this means we reach the necessary conclusion that Judge Thayer is right and the other judges wrong.

The male bar as yet shows very little disposition to interest itself in the agitation for the admission of woman, and this is, we believe, generally due to a belief that women will never be able to enter into competition with them as lawyers. But is this clear? The “law business” in this country is in a very curious state, and there seems to be a demand on it for every species of man—for the learned and ignorant, the lazy and energetic, the bright and the stupid, the scrupulous and dishonest, the truthful and the mendacious. Many of these qualities are found among women.and in certain branches of practice, especially jury practice, the effect of a speech by a leading counsel might be powerful. It is said to be the custom of some attorneys in New York to retain special counsel solely on the round that they are likely to be opposed to other counsel of brow beating turn,whose wrath they do not fear. Pitting a very talkative woman against a loud, bullying lawyer would make such a lawsuit a very “even thing.” She would not dread him—a woman, when her blood is up, fears no one; and his scorn would only stimulate her to renewed efforts. In “woman cases” it has long been the custom of all eminent lawyers to make use of the woman in the case as far as possible, bringing her into court, melted in tears, or shaking with suppressed sobs, so as to move the softhearted jurymen. This machinery might be greatly reinforced by the aid of a lady-counsel, ready to take her erring sister by the band and make a final appeal to the jury on behalf of “all the hearts that would ache ‘if they should hang her.

The fact is generally overlooked by those who insist on woman’s admission to the bar, that it seems to involve, as a necessary consequence, her being enrolled for jury duty. It would, in fact, be much easier to show to the satisfaction of a court that a woman is fit to perform jury duty than that she can stand the tremendous strain that advocacy sometimes entails. She would merely have to sit a few days out of the year, in a perfectly comfortable chair, and then consult with her fellow-jurors, and put pieces of paper with “Yes” or “No,”“Guilty” or “Not guilty,” into a hat or bonnet, There is no question that she is as able to sit for a few days in court as a man, for she frequently sits there for days together; and jury duty, as every one knows, requires no special training or qualification of any kind. The enforceo silence might be a hardship, but then she would make up for this by magnificent opportunities for simultaneous conversation and argument in the jury. room. If woman’s sphere has an infinite and indeterminable radius, it must include jury service, Indeed, it seems to us that really high- minded women ought to ask for jury duty.