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Monday, August 19, 2019

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 19th century is not surprising to 21st 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 19th 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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16 comments:

  1. Cate, you really opened my eyes with this article of yours. I had no idea. I loved your story, COURTING ANNA, and this makes me love it even more to think that there was a factual basis for her being an attorney. You really nailed the reactions of others to her being an attorney in the book--I look forward to more stories from you!

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    1. Oh, of course! I did wonder if folks might think I was making things up -- but it was after I knew a bit about the history that the character of Anna started telling me about her life. In fact, parts of the book were originally written in first person, accordingly!

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  2. Thank you the history of women lawyers. Like I said before, I didn't know women lawyers went back that far. The book sounds very interesting, can't wait to read it.

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    1. I think it surprises a lot of people, considering we didn't really make major inroads into the profession until well into the 20th century.

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  3. Wow. I had no idea women were practicing law in the 19th century. Thanks for the history lesson. Your story sounds fascinating. Good luck!

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    1. Thank you! I loved writing this character; the more I poked around the more she seemed to want to tell me her story!

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  4. I find women in the 1800s who followed a profession worth the time and effort to research, hence the many years I spent on women doctors, especially in Colorado. I applaud your choice of heroine's profession. Keep up the good work. Doris

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    1. Thanks, Doris! I really enjoyed doing the research -- and I plan on taking it further. (I'm working on the idea of an 1880s woman lawyer in a mystery series, now, because I had so much fun writing Anna!)

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  5. Yikes! How did I miss this post? I love it when the women in history took on the usual male roles in business and government and showed for all to see and know, that women are sharp as tacks when they need to be so back off unless ya wanna get pinched.
    Research is a wonderful pursuit. I can get lost in it. I am happy to see how you used these remarkable female leaders as inspiration for Courting Anna. I wish you all the best, Cate, and apologize for being late.

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    1. No problem at all, Sarah -- I'm now late on replying because my laptop had a bit of a meltdown and I just got it back. One of the things I'm loving about writing historical fiction is getting back into researching the period -- I studied Victorian lit but now I teach first year writing and science fiction to engineers, and I missed the 19th century!

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  6. This is why I love historical romance....writers entertain while informing: a win-win situation. I've always been fascinated by court room drama, thanks to Erle Stanley Gardner. I'm glad you chose thee legal field to research and write about a heroine facing the opposition she'd get in this man's territory. Good luck with your book.

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    1. Thanks, Elizabeth! Well, unlike Perry Mason, Anna doesn't always win. ;-) But often enough . . . I loved coming back to this field to research, and exploring Anna's world.

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  7. I'm thankful, and a bit in awe, of the determined women who challenged the male dominated professions back then. That they prevailed in their pursuits of law, medicine, business, and other traditionally male professions, despite the resistance they encountered, can't be underestimated in the importance it had on the female professional future. Best of luck with your book. ;-)

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    1. Thanks, Kaye. I know I have something good -- it's just a matter of connecting with readers. I'm reading a biography of Belva Lockwood right now and wow, that was one determined lady!

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  8. Really interesting! Thanks for sharing, Cate.

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  9. Great post, Cate. Scotland had to wait until 1920 to get a woman lawyer, and 1922 in England. Great to see you writing about these pioneers. Loved the book!

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