Lawyers in Petticoats: The Early History of American Women in the Legal Profession

by Cate Simon

Whether because of Doctor Quinn: Medicine Woman or the historical physician Mary Edwards Walker, the notion that there were women who practiced medicine in the 19^th century is not surprising to 21^st century audiences.  But when I find myself telling people about my novel Courting Anna, and I explain that the heroine is a lawyer in the late 19^th century, I always hasten to explain: no, it’s not anachronistic.

Anna Harrison

I first started wondering about women in the law in Victorian times when I read Wilkie Collins’ 1875 novel, The Law and the Lady, in graduate school.  The heroine, Valeria Macallan, seeks to overturn the verdict which condemns the man she loves to a half-life, shadowed by suspicion.  Valeria is mocked as a “lawyer in petticoats” by the men from whom she seeks assistance, although in the end, she prevails.  Collins’s novel set me to wondering what the reality was for women in the legal profession at the time the novel was written.  As it turns out, there were no women lawyers in Great Britain, where the book is set.  In various states and territories throughout the United States, however, the answer was different.

In 1869, Arabella Mansfield was admitted to the bar in Iowa.  By 1878, Clara Shortridge Foltz had been admitted to practice in California.  Perhaps my favorite of these early women lawyers is Belva Lockwood, who collected several state bar admissions, beginning in 1872.  She was directly responsible for an 1879 Federal law, signed by President Rutherford B. Hayes, which permitted qualified women attorneys to practice law in any Federal court in the United States.  In 1880, Lockwood was the first woman to argue a case before the U.S. Supreme Court, and she went on to run for President several times, despite not having the vote.  The Equity Club, a nationwide corresponding society made up of women lawyers, had 100 members in 1880 and 200 in 1890!

The fabulous Belva Lockwood and a rather disappointed-looking Myra Bradwell

Not every jurisdiction was equally accepting, of course.  Bradwell v. Illinois, heard by the U.S. Supreme Court in 1872, concerned one Mrs. Myra Bradwell. The state of Illinois refused her admittance to the bar on the ground of sex; the Supreme Court refused to overturn the ruling on a narrow interpretation of law. The concurrence by Justice Bradley, however, sets forth the doctrine of separate spheres, a staple of nineteenth-century thinking about gender:

The civil law, as well as nature herself, has always recognized a wide difference in the

respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.

This is much the same reasoning that Valeria Macallan comes up against in The Law and the Lady.  With regard to Myra Bradwell, one might note that, lawyer or not, she had, and continued to have, a major impact on the legal profession.  She was the editor and publisher of the Chicago Legal News, the foremost legal publication of the entire Midwestern United States.  And with regard to Justice Bradley’s reasoning, one might note that her sponsor for admission to the bar was none other than Mr. Bradwell, who clearly had no difficulty with his wife’s professional ambitions.  Shortly afterwards, Illinois law was amended to allow women to practice law there.

So while it would have been unusual for Anna to be practicing law at the time when Courting Anna is set, it would certainly not have been impossible.  When she first meets her love interest, Jeremiah Brown, she’s been called to the local sheriff’s office on a case of false imprisonment.  He and his partner are a bit surprised at who shows up.  “You were expecting a lawyer named Harrison, weren’t you?  Well, that’s me, Anna Harrison.”  Overcoming their surprise, the men accept her representation, and soon come to respect her – and in Jeremiah’s case, to feel something more.

Except . . . I envisioned the story as taking place in the 1880s, and chose Montana because some relatives live there, which makes me feel connected.  Unfortunately, although Cynthia Eloise Cleveland was admitted in Dakota Territory in 1881, and Ada Bittenbender in Nebraska that same year, the first historical woman lawyer in Montana was Ella J. Knowles Haskell . . . in 1889.

I throw myself on the mercy of the court.

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