Volume 13, Issue 3

Spring 2002

Senior Lawyer News

 

We are all aware of and helped by the presence of women as members of our profession. We also know it was not always so. J. Willard Greer of South Boston sent this article to enlighten and remind us. It is taken from Karen Berger Morello's history of women in law, and tells the story of Belva Ann Lockwood (1830–1917), who fought against sexual discrimination in the bar and eventually became the first woman to argue before the U.S. Supreme Court.


From The Invisible Bar: The Woman Lawyer
by Karen Berger Morello

After graduating in 1873 from the National University Law School in Washington D.C., with much difficulty because of prejudice against women students, Belva Ann Lockwood built up a practice in the Capital area. She handled cases in police and probate courts, filed divorce and support proceedings and tried to specialize in claims against the United States government.

Her interest in this area of the law began with a visit from a client who wanted representation against the government for infringement of her husband's patent on the design of a torpedo boat. Lockwood was not admitted to the United States Court of Claims, but she filed her power of attorney and a certificate with the court and asked attorney A.A. Hosmer to move her admission. When the five-man court convened, Belva Lockwood's admission was the first matter on the calendar. After Hosmer completed his oral argument, Chief Judge Charles Drake looked Lockwood over, then said, "Mistress Lockwood, you are a woman," Silence. Then, "This cause will be continued for a week. The court will recess for ten minutes." Lockwood, who never forgot the incident, remarked, "For the first time in my life I began to realize that it was a crime to be a woman, but it was too late to put in a denial, so I pled guilty."

The following week Lockwood returned to the court of claims, and on the advice of counsel she was accompanied by her husband, Eziekel Lockwood. This time Judge Drake sternly noted, "Mistress Lockwood, you are a married woman." Sensing the implication that she was barred from practicing law because of the doctrine of feme covert, Lockwood answered, "Yes, but may it please the court, I am here with the consent of my husband." Drake replied, "Madam, women do not speak in this courtroom. You will sit down."

The case was continued for another week. After several more adjournments, attorney Charles W. Horner filed an application for admission on Lockwood's behalf. But Horner had no better results than Hosmer or Lockwood. Judge Charles Nott, in delivering the decision of the court, said, "The position which this court assumes is that under the laws and Constitution of the United States a court is without power to grant such an application and that a woman is without legal capacity to take the office of attorney. The request is denied."

Lockwood was not prepared to give up entirely. Unable to represent her client in court she schemed to win the case another way. Lockwood prepared the legal briefs in the case, then trained her client, Mrs. Von Cort, to read them in court, since no judge could prevent a citizen from pleading her own case. But Lockwood knew this method of practicing law could not continue. Ahead of her were countless cases needing to be argued in court. Among them was Webster Raines v. United States.

Mr. and Mrs. Raines had disagreed about whether Belva Lockwood should represent them. Mrs. Raines was determined to hire Lockwood as their attorney, but her husband thought their case might be seriously jeopardized by the restrictions on Lockwood in the court of claims. Lockwood managed to convince them that it would be only a little while longer before she would be eligible for admission to the federal courts. The wording of the federal statute for admission to the United States Supreme Court was the basis of her assumption. It held that "any attorney in good standing before the highest court of any State or Territory for the space of three years shall be admitted to this court when presented by a member of this bar." With no restrictions in the statute regarding gender Lockwood was certain she would be able to take her client's case all the way up to the Supreme Court. In the meantime she would try her luck again with the court of claims—this time with client Webster Raines close to her side.

When the Raines case was called, Judge Nott was amazed to see Lockwood daring to make another appearance before him. "Madam, " he asked, "what are you doing in my courtroom?" But he apparently did not want to hear her answer, because when Lockwood attempted to explain her reason for being there, Nott cut her off: "Mrs. Lockwood, if you dare speak, I shall hold you in contempt." Webster Raines tried to intervene, even demanding that the judge let him proceed with the attorney of his choice, but Judge Nott ordered Raines to go out and get himself a "capable " lawyer.

Making no secret of her annoyance, Belva Lockwood conferred with her clients and realized they would have no choice but to hire a substitute counsel for the oral argument. After her replacement finished presenting his case before the court, Lockwood complained that "he said very badly in three days what I would have said very well in one hour." Worse yet, they lost. The only optimistic note was that on appeal Belva Lockwood might possibly argue the case before the United States Supreme Court, since its admissions statute was not gender restrictive.

The opportunity arose on October 1876. Lockwood retained attorney Albert G. Riddle to move her admission to the Supreme Court and expected to have little difficulty in getting through the process. But as soon as Riddle stated his purpose, Chief Justice Morrison R. Waite announced that the matter of Mrs. Lockwood's admission would have to be taken under advisement. One week later the Chief Justice delivered the opinion of the court:

By the uniform practice of the court, from its organization to the present time, and by the fair constructions of its rule, none but men are admitted to practice before it as attorneys and counselors. This is in accordance with immemorial usage in England, and the law and practice in all the states until within a recent period; and the court does not feel called upon to make a change, until such change is required by statute, or a more extended practice in the highest courts of the States . . . . As this court knows no English precedent for the admission of women to the bar, it declines to admit, unless there shall be a more extended public opinion or special legislation.

News of the Supreme Court's decision outraged Lockwood and supportive members of the bar. Myra Bradwell was the first to ridicule Chief Justice Waite in the pages of the Chicago Legal News:

The opinion delivered by Waite, C.J., refusing Mrs. Lockwood a license to practice in the Supreme Court of the United States . . . was unsound, and contrary to the practice of the court in every case since its organization. The same reasoning which the Chief Justice used to exclude Mrs. Lockwood, would compel every attorney who appears in the Supreme Court of the United States to wear a gown and wig. Women have never been admitted to practice in Westminster Hall and other superior courts in England, unless they wore gowns and wigs, and, therefore, it follows that they should not be allowed to practice in the Supreme Court of the United States without these necessary articles.

Belva Lockwood realized that she would have to take the matter to Congress. She drafted a bill specifically providing for admission of women to the federal courts and persuaded Representative Benjamin F. Butler to submit it to the House Judiciary Committee. The bill, and a second one she drafted, never got to the floor of the House. But finally, in April 1878, the house did pass Bill No. 1077—"An act to Relive Certain legal Disabilities of Women," which gave women attorneys access to the federal courts. Lockwood knew the battle would be even more difficult in the Senate and she publicly urgued women "to get up and fight all along the line." She buttonholed senators in the corridors of the Capitol and cultivated the interest of the courthouse reporters who had always found Belva to be a lively source for articles. The favorable publicity she received in turn brought in more mail and more supporters.

Senator Aaron Sargent of California and Joseph McDonald of Indiana proved to be the greatest supporters of the bill in the Senate. In an impassioned argument, Sargent said:

Mr. President, the best evidence that members of the legal profession have no jealousy against the admission to the Bar of women who have the proper learning, is shown by that document which I hold in my hand, signed by one hundred and fifty-five lawyers of the District of Columbia, embracing the most eminent men in the ranks of that profession [exhibiting a petition in support of the bill].

Where is the propriety in opening our colleges, our higher institutions of learning or any institutions of learning to women and then, when they have acquired in the race with men the cultivation of higher employments, to shut them out? There certainly is none.

Some excellent lady lawyers in the United States are now practicing at the Bar, behaving themselves with propriety, acceptably received before the courts and juries; and when they have conducted their cases to a successful issue, or to an unsuccessful one in any court below, why should the United States Courts, to which an appeal may be taken, and where their adversary of the male sex may follow the case up, why should they be debarred from appearing before those tribunals.

On February 7, 1879, the "Lockwood" bill passed the Senate; shortly thereafter President Rutherford B. Hayes signed it into law. The Washington Star said: "The credit for his victory belongs to Mrs. Belva Lockwood of this city, having been refused admission to the bar of the United States Supreme Court, appealed to Congress and by dint of hard work has finally succeeded in having her bill passed by both houses."

 


 

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