In re Leach

• Decision Date: 14 June 1893
• Citation: 34 N.E. 641,134 Ind. 665
• Parties: In re LEACH.
• Court: Indiana Supreme Court

134 Ind. 665

34 N.E. 641

In re LEACH.

Supreme Court of Indiana.

June 14, 1893.

Appeal from circuit court, Greene county; J. C. Briggs, Judge.

Application of Antoinette D. Leach for admission to the bar. Application denied. Petitioner appeals. Reversed.

John S. Bays, for appellant.

HACKNEY, J.

The petitioner made an application in the lower court for admission as a member of the bar of said court, to practice as an attorney at law therein. The special finding of the court discloses that the petitioner, a citizen of this state, is a woman over the age of 21 years, and of good moral character; that she possesses sufficient knowledge of the law to qualify her to practice in the courts of this state; and that she sought the required oath as a member of said bar. Upon the facts stated the court found, as a conclusion of law, that the petitioner, not being a voter, should be denied such admission. The appeal herein presents the question of the correctness of this conclusion.

It is said that the lower court based its conclusion upon section 21, art. 7, of the state constitution, which is as follows: “Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice.” In addition to this provision of the constitution, the legislature has enacted that “every person of good moral character, being a voter, on application, shall be admitted to practice law in all the courts of justice,” (Rev. St. 1881, § 962,) and providing a procedure in establishing the right of such persons to be admitted to practice. It will be observed that neither the constitution nor the statute is a limitation upon the right to membership. In each instance, as far as we have quoted, the right of the voter, of good moral character, is secured. We do not doubt the right, by constitution or by legislative enactment, to prescribe the qualifications necessary to membership in the legal profession, and to define the method of securing such membership; but what we now maintain is that, from neither the constitution nor the legislative enactment, do we find that women are excluded from such membership. While voters, of good moral character, are granted admission, upon application and proper evidence, there is no denial of such right to women. If the right is not denied by the constitution and laws of the state, we should next inquire if it is denied by that part of the common law made by the constitution a part of the law of this state. We have searched in vain for any expression from the common law, excluding women from the profession of the law. Custom and the usages of Westminster Hall granted permission to men. Some of the early statutes of England granted the privilege to men who, upon examination by the justices, were found to be “good and virtuous, and of good fame,” and when they should be “sworn well and truly to serve in their offices, and especially that they make no suit in a foreign country.” But the letter of such statutes did not exclude women. The custom and usages of Westminster Hall were incident to the prevailing order of society,-that to the domestic sphere, only, did the functions of womanhood belong; that woman had, and could have, no legal existence, apart from her husband; that she could not engage in business on her separate account, could make no contract without the consent of her husband; that her separate earnings belonged to her husband; that woman, from the delicacy of her nature, was unfitted for the activities of the sphere occupied by men. Such of these fictions as became a part of the law of this country are rapidly disappearing, and few if any of them exist in Indiana. It need not be considered whether we have adopted the customs and usages of Westminster Hall as a part of our common law. If they were the incidents of these fictions, they have vanished with the fictions. The other learned professions of this state are open alike to the sexes. There is no reason for an exception of the legal profession. If nature has endowed woman with wisdom, if our colleges have given her education, if her energy and diligence have led her to a knowledge of the law, and if her ambition directs her to adopt the profession, shall it be said that forgotten fictions must bar the door against her? Whatever the objections of the common law of England, there is a law higher in this country, and better suited to the rights and liberties of American citizens, -that law which accords to every citizen the natural right to gain a livelihood by intelligence, honesty, and industry in the arts, the sciences, the professions, or other vocations. This right may not, of course, be pursued in violation of law, but must be held to exist as long as not forbidden by law. We are...