This memorandum provides a brief overview of the key statutes, cases, and legal arguments that sanctioned the exclusion of women from the bar and, by extension, the bench, in the United States of America, the United Kingdom, and South Africa.
Women and Justice: Keywords
Gwyneth Bebb, upon being denied admission to the Law Society to take the preliminary examination to become a solicitor, took the matter to court. In Bebb v. Law Society, the Court of Appeal stated that the question of whether the gender-neutral language of the statutes meant that women could gain admission to the bar was settled through “long usage” in the common law and found that women were not included under “persons” in the Solicitor’s Act of 1843. Additionally, women were considered to have an additional disability at common law, namely that after marriage they are not able to enter into contracts with third parties. As every woman held the potential of being married, this disability was also applied to unmarried women.
Myra Bradwell petitioned to be admitted to the bar and to be allowed to practice law, but was denied by the Supreme Court of Illinois. The United States Supreme Court upheld this decision, noting that a woman’s freedom to pursue the occupation of a lawyer was not a “privilege and immunity” of Untied States citizenship that was protected from state restriction by the 14th amendment to the United States Constitution. Thus the court found that excluding women from the bar did not violate the U.S. Constitution.
Margaret Hall appealed to the Court of Sessions regarding the decision of the Society of Law Agents in Scotland to deny her permission to take the preliminary examination for the Society. Hall argued that she should be given permission because the statute permitted “persons” to become law agents and so, by its terms, did not exclude women. The Society had found that women did not have a legal right to practice law given that “[a]ccording to inveterate usage and custom in Scotland, that practice has in all departments of the law been hitherto confined exclusively to men.” Upon Hall’s appeal, the Court of Sessions also refused to grant her permission because the statute did not explicitly include women, even though it did not explicitly exclude them either. In support of its decision, the court stated that the word “persons” had to be interpreted according to its customary usage; because women had been ineligible to become law agents when the statute was enacted in 1873, the court found the customary usage of “persons” to mean “male persons” and accordingly refused Hall’s appeal.
A firm of attorneys was willing to enroll Madeline Wookey as an articled clerk, but Wookey met with opposition from the Cape Law Society, which refused to register her articles. Wookey submitted an application to the Cape Supreme Court, which ordered the Society to register her. The Law Society appealed this decision to the Appellate Division, arguing that Wookey could not be admitted as an attorney because she was a woman. The Appellate Division was called upon to decide whether the term “persons” used in the statute governing admission of attorneys to the bar included only “male persons” or also included women. They determined that “persons” included only male persons, thus excluding women from the legal profession.
This case addressed the claims of Etta Haynie Maddox that she should be allowed to sit for the bar examination and receive admission to the bar despite a Maryland state statute limiting bar admission to “male citizens of Maryland.” The Maryland Court of Appeals denied her application, stating that the court did not have the power to enact legislation. Thus until the legislative branch declared that women could be admitted to the bar, the court did not have any power to admit Maddox.
In 1909, Judge Bristowe of the Transvaal Supreme Court presided over Schlesin v. Incorporated Law Society, the first case in South Africa to consider whether women had a right to enter the legal profession. The Transvaal Supreme Court held that women were barred from admission to legal practice based on historical practice in South Africa, Holland, and England. Judge Bristowe explained that the Interpretation of Laws Proclamation 15 of 1902 provided that “words of the masculine gender shall include females…unless contrary intention appears” and found that given long historical practice, it was evident that contrary intention did indeed appear in the legislation governing admission to the bar.
In Goodell, the Supreme Court of Wisconsin refused to include women within the construction of the word “person” and denied Goodell admission to the bar because she was a woman. Judge Ryan noted that that extending the meaning of “person” to include females as well could result in perverse interpretations of the law, and provided examples of the ridiculous results he foresaw, including the “prosecution [of a woman] for the paternity of a bastard…” In support of his conclusion that a gender-neutral statute did not mean that women could be admitted to the bar, Judge Ryan also maintained that the admission of women to the bar was not something contemplated by the state legislators who enacted of the legislation in question; thus he found “no statutory authority for the admission of females to the bar of any court of [Wisconsin].”
The Supreme Court stated that a woman could not be admitted to the bar because she was under a common law disability: she did not have the right to enter into contracts with third persons without the permission of her husband.