In the Matter of The Application of Mrs. Myra Bradwell

• Decision Date: 30 September 1869
• Citation: 55 Ill. 535,1869 WL 5503
• Parties: In the matter of the application of Mrs. MYRA BRADWELL, for a license to practice law.a1
• Court: Illinois Supreme Court

55 Ill. 535

1869 WL 5503 (Ill.)

In the matter of the application of Mrs. MYRA BRADWELL, for a license to practice law.a1

Supreme Court of Illinois.

September Term, 1869.

Application of Mrs. Myra Bradwell for a license to practice law.

Mrs. MYRA BRADWELL presented an argument in her own behalf.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

At the last term of the court, Mrs. Myra Bradwell applied for a license as an attorney at law, presenting the ordinary certificates of character and qualifications. The license was refused, and it was stated, as a sufficient reason, that under the decisions of this court, 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.

Since the announcement of our decision, the applicant has filed a printed argument, in which her right to a license is earnestly and ably maintained. Of the qualifications of the applicant we have no doubt, and we put our decision in writing in order that she, or other persons interested, may bring the question before the next legislature.

The applicant, in her printed argument, combats the decision of this court in the case of Carpenter v. Mitchell, 50 Ill. 470, in which we held a married woman was not bound by contracts having no relation to her own property. We are not inclined to go over again the grounds of that decision. It was the result of a good deal of deliberation and discussion in our council chamber, and the confidence of the present members of this court in its correctness cannot easily be shaken. We are in accord with all the courts in this country which have had occasion to pass upon a similar question, the supreme court of Wisconsin, in Conway v. Smith, 13 Wis. 125, differing from us only on the minor point, as to whether, in regard to contracts concerning the separate property of married women, the law side of the court would take jurisdiction.

As to the main question, the right of married women to make contracts not affecting their separate property, the position of those who assert such right is, that because the legislature has expressly removed the common law disabilities of married women in regard to holding property not derived from their husbands, it has, therefore, by necessary implication, also removed all their common law disabilities in regard to making contracts, and invited them to enter, equally with men, upon those fields of trade and speculation by which property is acquired through the agency of contracts. The hiatus between the premise and conclusion is too wide for us to bridge. It may be desirable that the legislature should relieve married women from all their common law disabilities. But to say that it has done so, in the act of 1861, the language of which is carefully guarded, and which makes no allusion to contracts, and does not use that or any equivalent term, would be simple misinterpretation. It would be going as far beyond the meaning of that act as that act goes beyond the common law in changing the legal status of women. The act itself is wise and just, and therefore entitled to a liberal interpretation. This we have endeavored to give it in the cases that have come before us, but we do not intend to decide that the legislature has gone to a length in its measure of reform for which the language it has carefully used furnishes no warrant.

It is urged, however, that the law of the last session of the legislature, which gives to married women the separate control of their earnings, must be construed as giving to them the right to contract in regard to their personal services. This act had no application to the case of Carpenter v. Mitchell, having been passed after that suit was commenced, and we were unmindful of it when considering this application at the last term. Neither do we now propose to consider how far it extends the power of a married woman to contract, since, after further consultation in regard to this application, we find ourselves constrained to hold that the sex of the applicant, independently of coverture, is, as our law now stands, a sufficient reason for not granting this license.

Although an attorney at law is an agent, as is claimed by the applicant's argument, 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 of the 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.

Our statute provides that no person shall be permitted to practice as an attorney or counsellor 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 exercised 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 in court, is a question opening a wide field...