Robinson's Case

• Citation: 131 Mass. 376
• Parties: Lelia J. Robinson's Case
• Decision Date: 07 September 1881
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 376

Lelia J. Robinson's Case

Supreme Court of Massachusetts

September 7, 1881

Suffolk.

Petition dismissed.

Petitioner pro se.

R. M Morse, Jr. & H. L. Harding, contra.

OPINION

Gray C. J.

The question presented by this petition, and by the report on which it has been reserved for our determination, is whether under the laws of the Commonwealth, an unmarried woman is entitled to be examined for admission as an attorney and counsellor of this court.

This being the first application of the kind in Massachusetts, the court, desirous that it should be fully argued, informed the executive committee of the Bar Association of the city of Boston of the application, and has received elaborate briefs from the petitioner in support of her petition, and from two gentlemen of the bar as amici curioe in opposition thereto.

The statute under which the application is made is as follows: "A citizen of this State, or an alien who has made the primary declaration of his intention to become a citizen of the United States, and who is an inhabitant of this State, of the age of twenty-one years and of good moral character, may, on the recommendation of an attorney, petition the Supreme Judicial or Superior Court to be examined for admission as an attorney, whereupon the court shall assign a time and place for the examination, and if satisfied with his acquirements and qualifications he shall be admitted." St. 1876, c. 197.

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 of the United States, or by the Constitution of the Commonwealth, 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. Minor v. Happersett, 21 Wall. 162. Bradwell v. Illinois, 16 Wall. 130. Wheeler v. Wall, 6 Allen 558. Jackson v. Phillips, 14 Allen 539, 571.

The rule that "words importing the masculine gender may be applied to females," like all other general rules of construction of statutes, must yield when such construction would be either "repugnant to the context of the same statute," or "inconsistent with the manifest intent of the Legislature." Gen. Sts. c. 3, § 7.

The intention of the Legislature in enacting a particular statute is not to be ascertained by interpreting the statute by itself alone, and according to the mere literal meaning of its words. Every statute must be construed in connection with the whole system of which it forms part, and in the light of the common law and of previous statutes upon the same subject. And the Legislature is not to be lightly presumed to have intended to reverse the policy of its predecessors or to introduce a fundamental change in long established principles of law.

By the law of England, which was our law from the first settlement of the country until the American Revolution, the Crown, with all its inherent rights and prerogatives, might indeed descend to a woman or to an infant; but, under the degree of a queen, no woman, married or unmarried, could take part in the government of the state. Women could not sit in the House of Commons or the House of Lords, nor vote for members of Parliament. 4 Inst. 5. Countess of Rutland's case, 6 Rep. 52 b. Chorlton v. Lings, L. R. 4 C. P. 374, 391, 392. They could not take part in the administration of justice, either as judges or as jurors, with the single exception of inquiries by a jury of matrons upon a suggestion of pregnancy. 2 Inst. 119, 121. 3 Bl. Com. 362. 4 Bl. Com. 395. Willes, J., in L. R. 4 C. P. 390, 391. And no case is known in which a woman was admitted to practice as an attorney, solicitor or barrister.

The only English "instance of a woman lawyer," cited by the petitioner, is that stated in a note of Mr. Butler to Coke upon Littleton, as follows: "The celebrated Anne, Countess of Pembroke, Dorset and Montgomery, had the office of hereditary Sheriff of Westmoreland, and exercised it in person. At the assizes at Appleby, she sat with the judges on the bench." Co. Lit. 326 a, note 280. No authority is given for the statement. The office of Sheriff of Westmoreland was granted by King John in the thirteenth century to Robert de Veteripont, or Vipont, and his heirs general, and after the death of his last heir male in 1265 descended to Isabella, wife of Roger de Clifford, and continued to be an hereditary office until 1850, when it was put by act of Parliament on the footing of other like offices. 3 Selden's Works, 1839. Co. Lit. 222. Collins on Baronies, 251, 317, 319, 321. St. 13 & 14 Vict. c. 30. The Countess Anne was born in 1590, took the office by descent from her father, George, Lord Clifford and Earl of Cumberland, in 1605, and died in 1676, leaving a very full autobiography, a transcript of which is preserved among the Harleian Manuscripts in the British Museum, in which she says of her ancestress Isabella de Clifford that "in her widowhood she sat in person as sheriffess in the County of Westmoreland upon the bench with the judges, as appears by the pleas and records of her time;" and mentions the appointment of a deputy sheriff by herself in 1651. It is quite possible that, as a matter of ceremony, or by way of asserting her title to the office, she (as well as her ancestress three centuries before) may sometimes herself have attended the judges, or that, in accordance with English usage, a person of her rank and distinction, when present in court, may have been invited by them to sit upon the bench. But that she habitually discharged the general duties of the office in person has been shown by an accomplished scholar, after careful research, to be highly improbable in fact. 4 Craik's Romance of the Peerage, 162. And she could not have done so without violating the well settled law.

The office of sheriff was partly judicial and partly ministerial; the judicial functions could not be delegated; but the ministerial duties, including that of attendance upon the judges, might be performed by deputy. Dalton's Sheriff, cc. 1, 4. Bandal's case, Noy, 21. Bacon's Use of the Law, 4 Bacon's Works (ed. 1803) 97. Willes, J., in L. R. 4 C. P. 390. When such an hereditary office descended to a woman, she might exercise the office by deputy, (at least with the approval of the Crown,) but not in person; nor could it be originally granted to any woman, because of her incapacity of executing public offices. Duke of Buckingham's case, Jenk. Cent. 6, pl. 14; S. C. Dyer, 285 b, pl. 39; Keilw. 170. 4 Inst. 128. Co. Lit. 107 b, 165 a. Case of the Great Chamberlain of England, 2 Bro. P. C. (2d ed.) 146; S. C. 36 Lords' Journals, 302. Women were permitted to hold the office of keeper of a castle or jail, governor of a workhouse, forester or constable, for the reason that each of those offices might be executed by a deputy. Lady Russell's case, Cro. Jac. 17. 2 Inst. 382. Anon. 2 Ld. Raym. 1014; S. C. 3 Salk. 2. 4 Inst. 311. 2 Hawk. c. 10, § 37. Willes, J., in L. R. 4 C. P. 389. They were decided to be capable of voting for and of being elected to the office of sexton of a parish, upon the ground that this was not an office that concerned the public. Olive v. Ingram, 2 Stra. 1114; S. C. Vin. Ab. Feme A, pl. 7, 8; 7 Mod. 263, 273, 274. And we are not aware of any public office, the duties of which must be discharged by the incumbent in person, that a woman was adjudged to be competent to hold, without express authority of statute, except that of overseer of the poor, a local office of an administrative character, in no way connected with judicial proceedings. The King v. Stubbs, 2 T. R. 395.

An attorney at law is not indeed, in the strictest sense, a public officer. But he comes very near it. As was said by Lord Holt, "the office of an attorney concerns the public, for it is for the administration of justice." White's case, 6 Mod. 18. Bradley's case, 7 Wall. 364, 378, 379. By our statutes he is required, upon his admission, to take and subscribe in open court the oaths to support the Constitutions of the United States and of this Commonwealth, as well as the oath of office; this oath, the form of which has remained without substantial change since the time of Lord Holt, nearly a hundred and eighty years, pledges him to conduct himself "in the office of an attorney within the courts" according to the best of his knowledge and discretion, and with all good fidelity as well to the courts as to his clients; and he becomes by his admission an officer of the court, and holds his office during good behavior, subject to removal by the court for malpractice. Gen. Sts. c. 121, §§ 30, 31, 34. Rev. Sts. c. 88, §§ 21, 22, 25, and Commissioners' notes St. 1785, c. 23. Prov. St. 1701-2 (1 Anne) c. 7; 1 Prov. Laws (State ed.) 467. Randall's case, 11 Allen 473. Randall v. Brigham, 7 Wall. 523. Robinson's case, 19 Wall. 505, 512.

There is nothing in the action of the Legislature or of the Judiciary of the Commonwealth which has any tendency to prove such a change in the law and usage prevailing at the time of our separation from the mother country as to admit women to the exercise of any office that concerns the administration of justice.

In 1871 the Governor and Council required the opinion of the justices of this court, under c. 3, art. 2, of the Constitution of the Commonwealth, upon the following questions: "First. Under the Constitution of this Commonwealth, can a woman, if duly appointed and qualified as a justice of the peace, legally perform all acts pertaining to such office? Second. Under the laws of this Commonwealth would oaths and acknowledgments of deeds, taken before a married or unmarried woman, duly appointed...