In re Ricker

• Decision Date: 30 June 1890
• Parties: In re RICKER.
• Court: New Hampshire Supreme Court

29 A. 559

66 N.H. 207

In re RICKER.

Supreme Court of New Hampshire. Stafford.

June 30, 1890.

Petition by Marilla M. Ricker to be admitted to practice as an attorney.

Lelia J. Robinson, for petitioner. M. M. Ricker, pro se.

DOE, C. J. "Any citizen of the age of twenty-one years, of good moral character and suitable qualifications, on application to the supreme court, shall be admitted to practice as an attorney." Gen. Laws, c. 218, § 2. "The word 'citizen,' when used in its most common and most comprehensive sense, doubtless includes women; but a woman is not, by virtue of her citizenship, vested by the constitution * * * with any absolute right, independent of legislation, to take part in the government, either as a voter or as an officer, or to be admitted to practice as an attorney. * * * The word 'citizen,' in the statute under which this application is" made, is but a repetition of the word originally adopted with a view of excluding aliens." Robinson's Case, 131 Mass. 370, 377, 382. Under a statute like ours, in all respects that are material in the present inquiry, it was held in that case that an unmarried woman is not entitled to be examined for admission as an attorney. The ground of the decision was that by the law of England, which was our law from the first settlement of the country until the American Revolution, no woman could, in person, take an official part in the government of the state, except as queen, or overseer of the poor, without express authority of statute. No case is known in which a woman was admitted to practice as an attorney, solicitor, or barrister. Although an attorney at law is not, in the strictest sense, a public officer, he comes very near it. He is required to take the oaths to support the constitutions, and an oath of office, which has remained without substantial change since the time of Lord Holt. By admission, he becomes an officer of the court, and holds his office during good behavior, subject to removal. His office concerns the public, for it is for the administration of justice. Whenever the legislature has intended to make a change in the legal rights or capacities of women, it has used words clearly manifesting its intent, and the extent of the change intended. In making innovations upon the long-established system of law on this subject, the legislature has proceeded with great caution,—one step at a time. The whole course of legislation precludes the inference that any change in the legal rights or capacities of women is to be implied, which has not been clearly expressed. There has been no legislative or judicial action having any tendency to prove such a change in the law and usage prevailing in 1776 as to admit women to the exercise of any office that concerns the administration of justice. This ground of decision was adopted in Leonard's Case, 12 Or. 63, 6 Pac. 426. The same conclusion was reached in Bradwell's Case, 55 Ill. 535, 537-541, where it was held that authority to license attorneys was derived from a statute. "Although an attorney at law," say the court, "is an agent * * * when he has been retained to act for another, yet he is also much more than an agent. He is an officer of the court, holding his commission, in this state, from two members of this court, and subject to be disbarred by this court for what our statute calls 'mal-conduct in his office.' He is appointed to assist in the administration of justice, is required to take an oath of office, and is privileged from arrest while attending courts. * * * At the time this statute was enacted, we had, by express provision, adopted the common law of England. * * * Female attorneys at law were unknown in England. * * * 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 equally to men and women. * * * This step, if taken by us, would mean that in the opinion of this tribunal every civil office in this state may be filled by women. * * * The great body of our law rests on ancient usage. * * * The mere fact that women have never been licensed as attorneys at law is, in a tribunal where immemorial usage is as much respected as it is and ought to be in courts of justice, a sufficient reason for declining to exercise our discretion in their favor until the propriety of their participating in the offices of state and the administration of public affairs shall have been recognized by the lawmaking department of the government. * * * If we could disregard in this matter the authority of those unwritten usages which make the great body of our law, we might do so in any other, and the dearest rights of person and property would become a matter of mere judicial discretion."

In Goodell's Case, 39 Wis. 232, it was held that the statute left the admission of attorneys to the discretion of the court, and a motion to admit Miss Goodell was denied on the ground that it is public policy not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours. The practice of the law, like military service, is not one of the many employments that are fit for women. Discussions are habitually necessary, in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety. "If these things are to come," say the court, "we will take no voluntary part in bringing them about."

In Lockwood's Case, 9 Ct. CI. 346, it was held that admission to the bar is admission to an office which a woman is without legal capacity to hold, and the opinion was expressed that women are as well fitted for military service as for the practice of law. "In cases of misconduct by an attorney," it was said (page 353), he may be attached by the court, and imprisoned; but, if the attorney were a married woman, she might come in, and say that the misconduct occurred in her husband's presence, and that at common law it was by his compulsion. She might misapply the funds of a client, or be guilty of gross neglect or fraud, and the husband be sued at common law for the wrong. In Hall's Case, 50 Conn. 131, the construction given to a statute by a majority of the court allowed women to be admitted to the bar. Upon re-enactments of an old statute, general compilations and revisions, and circumstantial evidence, contextural and extraneous, it seems to have been held that the legislature had changed the law.

The common-law disabilities of a married woman, whose legal existence, for some purposes and to some extent, was merged in that of her husband, may have made it inexpedient that she should be a member of the legal profession. Her application for admission might formerly have been denied on the ground that she "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." Bradwell's Case, 55 Ill. 535, 536; Alton v. Gilmanton, 2 N. H. 520; Leighton v. Sargent, 27 N. H. 460, 468-472; Towle v. Hatch, 43 N. H. 270; Varnum v. Martin, 15 Pick. 440; Tarbell v. Dickinson, 3 Cush. 345, 350, 351. A form of a declaration in assumpsit against an attorney is: "For that whereas, * * * In consideration that the plaintiff * * * had then retained and employed the defendant, as then being an attorney, to prosecute and conduct a certain action, * * * for reasonable fees and reward, to be paid by the plaintiff to the defendant, he, the defendant, then promised the plaintiff to use due and proper care and skill; * * * nevertheless, the defendant, not regarding his said promise, did not, nor would, use due and proper care and skill." 1 Saund. PI. & Ev. 268. A married woman, who could defeat such a suit by pleading and proving her coverture at the time of making the contract, might not be a competent attorney. In this state, legal disabilities have been so far removed that marriage does not disqualify a woman for admission to the bar. Gen. Laws, c. 183, § 12; Laws 1879, c. 57, § 27; Harris v. Webster, 58 N. H. 481, 483, 484; Laton v. Balcom, 64 N. H. 92, 95, 6 Atl. 37; Seaver v. Adams, 66 N. H. 142, 143, 19 Atl. 776. "An act of parliament cannot alter by reason of time, but the common law may, since cessante ratione cessat lex." Potter, Dwar. St. 122; Cole v. Lake Co., 54 N. H. 242, 285.

"The constitution * * * vests in the courts all the judicial power of the state. The constitutional establishment of such courts appears to carry with it the power to establish a bar to practice in them, and admission to the bar appears to be a judicial power. It may therefore become a very grave question, for adjudication here, whether the constitution does not intrust the rule of admission to the bar, as well as of expulsion from it, exclusively to the discretion of the courts." Goodell's Case, 39 Wis. 232, 239; Splane's Case, 123 Pa. St. 527, 540, 16 Atl. 481. The constitutional question need not now be considered. If our statute of attorneys is an exercise of legislative power, it makes no change in the common law applicable to this case. It removes none of the legal disabilities of women, and destroys none of their rights. Orr v. Quimby, 54 N. H. 619, 626, 635, 636. If its provisions are not operative as a statute, they have nevertheless been acquiesced in and acted upon, and may well be regarded as having the force of rules of court, for the adoption of which a written order is not necessary. Fullerton v. Bank, 1 Pet 604, 613; Duncan v. U. S., 7 Pet. 435, 451. Independently of any statute, every court of record may make such rules for the transaction of its business as do not contravene the laws of the land. Bac. Abr. (Am. Ed. 1868) "Courts of U. S." c. The power is incidental; that is, implied as a means of accomplishing the purpose for which the court is established. Boody v. Watson, 64 N. H. 177, 9 Atl. 794. The provision that "the court may from time to...