Chapter XXXI · (continued 2)

3. To exclude women from the bar would be to do an injustice to the community, in preventing free and wholesome competition of existing talent, and to do still greater injustice to those women who are qualified for the profession, by shutting them out from an honorable and remunerative means of gaining a livelihood.

4. To exclude women from the bar because there are certain departments of the profession which are peculiarly ill-adapted to their sex and nature, would be to assume arbitrarily that, with entire lack of judgment or discretion, modesty or policy, they would seek or accept such business; and to close to them those avenues of the profession for which they are generally admitted to be eminently well adapted, for such a reason, and upon such an assumption, would be so grossly unjust that no argument can be based on such an impossible contingency.

Your applicant, having faithfully and diligently pursued the study of law for three years, being a graduate of the Boston University Law School, and having complied with the other requirements of the statute and the rules of court upon the subject, respectfully prays that her petition for examination, which was duly filed, may be favorably considered, and that it be included in the general notice to the Board of Examiners of Suffolk county.

Lelia Josephine Robinson.

The opinion given by the Supreme Judicial Court, so far as it relates to the main point at issue, is as follows:

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 might 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 curiæ 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, at 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. 107.

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 voter or as an officer, or to be admitted to practice as an attorney. Miuor vs. Happersett, 51 Wall. 162. Bradwell vs. Illinois, 16 Wall. 130. The rule that "words importing the masculine gender maybe 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 only statute making any provisions concerning attorneys, that mentions women, is the poor-debtor act, which, after enumerating among the cases in which an arrest of the person may be made on execution in an action of contract, that in which "the debtor is attorney-at-law," who has unreasonably neglected to pay to his client money collected, enacts, in the next section but one, "that no woman shall be arrested on any civil process except for tort." Gen. Sts. c. 124, §§ 5, 7. If these provisions do not imply that the legislature assumed that women should not be attorneys, they certainly have no tendency to show that it intended that they should. The word "citizen," in the statute under which this application is made, is but a repetition of the word originally adopted with a view of excluding aliens, before the statute of 1852, c. 154, allowed those aliens to be admitted to the bar who had made the preliminary declaration of intention to become citizens. Rev. Sts., c. 88, § 19. Gen. Sts., c. 121, § 28.

The reënactment of the act relating to the admission of attorneys in the same words without more so far as relates to the personal qualifications of the applicant, since other statutes have expressly modified the legal rights and capacity of women in other important respects, tends rather to refute than to advance the theory that the legislature intended that these words should comprehend women. No inference of an intention of the legislature to include women in the statutes concerning the admission of attorneys can be drawn from the mere omission of the word "male." The only statute to which we have referred, in which that word is inserted, is the statute concerning the qualifications of voters in town affairs, which, following the language of the article of the constitution that defines the qualifications of voters for governor, lieutenant-governor, senators and representatives, speaks of "every male citizen of twenty-one years of age," etc. Gen. Sts. c. 18, § 19. Const. Mass. Amendments, art. 3. Words which taken by themselves would be equally applicable to women and to men are constantly used in the constitution and statutes, in speaking of offices which it could not be contended, in the present state of law, that women were capable of holding.

The Courts of the commonwealth have not assumed by their rules to admit to the bar any class of persons not within the apparent intent of the legislature as manifested in the statutes. The word "persons," in the latest rule of Court upon the subject, was the word used in the rule of 1810 and in the statutes of 1785 and 1836, at times when no one contemplated the possibility of a woman's being admitted to practice as an attorney. 121 Mass. 600. 6. Mass. 382. St. 1785, c. 23. Rev. St. c. 18, 20. Gen. Sts. c. 121, § 29. The United States Court of Claims, at December term, 1873, on full consideration, denied an application of a woman to be admitted to practice as an attorney upon the ground "that under the constitution and laws 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 an attorney." Lockwood's Case, 9 Ct. of Claims, 346, 356. At October terms 1876 of the Supreme Court of the United States, the same petitioner applied to be admitted to practice as an attorney and counsellor of that Court, and her application was denied.

The decision has not been officially reported, but upon the record of the Court, of which we have an authentic copy, it is thus stated: "Upon the presentation of this application, the chief-justice said that notice of this application having been previously brought to his attention, he had been instructed by the Court to announce the following decision upon it: By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are permitted to practice before it as attorneys and counsellors. This is in accordance with immemorial usages in England, and the law and the 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." The subsequent act of congress of February 15, 1879, enables only those women to be admitted to practice before the Supreme Court of the United States who have been for three years members of the bar of the highest Court of a State or territory, or of the Supreme Court of the District of Columbia.

The conclusion that women cannot be admitted to the bar under the existing statutes of the commonwealth is in accordance with judgments of the highest Courts of the States of Illinois and Wisconsin. Bradwell's Case, 55 Ill., 525. Goodell's Case, 39 Wis., 232. The suggestion in the brief of the petitioner that women have been admitted in other States can have no weight here, in the absence of all evidence that (except under clear affirmative words in a statute) they have ever been so admitted upon deliberate consideration of the question involved, or by a Court whose decisions are authoritative.

It is hardly necessary to add that our duty is limited to declaring the law as it is, and that whether any change in that law would be wise or expedient is a question for the legislative and not for the judicial department of the government.

Marcus Morton, Chief-Justice,

Petition dismissed.

[Signed:]Charles Devens,William E. Endicott,

William Allen,Otis P. Lord,

Charles Allen,Walbridge A. Field.

The three preceding decisions of the Supreme Judicial Court of Massachusetts against the rights of the women of the commonwealth were as follows:

The first decision was in the case of Sarah E. Wall of Worcester, who had refused to pay her taxes under the following protest:

Believing with the immortal Declaration of Independence that taxation and representation are inseparable; believing that the constitution of the State furnishes no authority for the taxation of woman; believing also that the constitution of the higher law of God, written on the human soul, requires us, if we would be worthy the rich inheritance of the past and true to ourselves and the future, to yield obedience to no statute that shall tend to fetter its aspirations, I shall henceforth pay no taxes until the word male is stricken from the voting clauses of the constitution of Massachusetts.

Sarah E. Wall.

Worcester Daily Spy, October 5, 1858.

Miss Wall was prosecuted by the city collector, and she carried her case before the Supreme Court, where she appeared for herself, W. A. Williams appearing for the collector. In an account of this matter in 1881, Miss Wall says: "Although it was in 1858 that my resistance to taxation commenced, it was not until 1863 that the contest terminated and the decision was rendered. I think the Supreme Court would always find some way to evade a decision on this question."

Wheeler vs. Wall, 6 Allen, 558: By the constitution of Massachusetts, c. 1, § 1, article 4, the legislature has power to impose taxes upon all the inhabitants of and persons resident, and estates lying within the said commonwealth. By the laws passed by the legislature in pursuance of this power and authority, the defendant is liable to taxation, although she is not qualified to vote for the officers by whom the taxes were assessed. The Court, acting under the constitution, and bound to support it and maintain its provisions faithfully, cannot declare null and void a statute which has been passed by the legislature, in pursuance of an express authority conferred by the constitution.—[Opinion by the chief-justice, George Tyler Bigelow.

The second decision on the will of Francis Jackson is copied verbatim from Allen's Reports:

Jackson vs. Phillips and others, 14 Allen, 539: A bequest to trustees, to be expended at their discretion, * * * * "to secure the passage of laws granting whether women, married or unmarried, the right to vote, to hold office, to hold, manage and devise property, and all other civil rights enjoyed by men," is not a charity.

Bill in equity by the executor of the will of Francis Jackson of Boston, for instructions as to the validity and effect of the following bequests and devises:

Art. 6th. "I give and bequeath to Wendell Phillips of said Boston, Lucy Stone, formerly of Brookfield, Mass., now the wife of Henry Blackwell of New York, and Susan B. Anthony of Rochester, N. Y., their successors and assigns, $5,000, not for their own use, but in trust, nevertheless, to be expended by them without any responsibility to any one, at their discretion, in such sums, at such times and in such places as they may deem fit, to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage and devise property, and all other civil rights enjoyed by men; and for the preparation and circulation of books, the delivery of lectures, and such other means as they may judge best; and I hereby constitute them a board of trustees for that intent and purpose, with power to add two other persons to said board if they deem it expedient. And I hereby appoint Wendell Phillips president and treasurer, and Susan B. Anthony secretary of said board. I direct the treasurer of said board not to loan any part of said bequest, but to invest, and, if need be, sell and reïnvest the same in bank or railroad shares, at his discretion. I further authorize and request said board of trustees, the survivor and survivors of them, to fill any and all vacancies that may occur from time to time by death or resignation of any member or any officer of said board. One other bequest, hereinafter made, will, sooner or later, revert to this board of trustees. My desire is that they may become a permanent organization, until the rights of women shall be established equal with those of men; and I hope and trust that said board will receive the services and sympathy, the donations and bequests, of the friends of human rights. And being desirous that said board should have the immediate benefit of said bequest, without waiting for my exit, I have already paid it in advance and in full to said Phillips, the treasurer of said board, whose receipt therefor is on my files."

Opinion.—Gray, J. IV. It is quite clear that the bequest in trust to be expended "to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage and devise property, and all other civil rights enjoyed by men," cannot be sustained as a charity. No precedent has been cited in its support. This bequest differs from the others, in aiming directly and exclusively to change the laws; and its object cannot be accomplished without changing the constitution also. Whether such an alteration of the existing laws and frame of government would be wise and desirable, is a question upon which we cannot, sitting in a judicial capacity, properly express any opinion. Our duty is limited to expounding the laws as they stand. And those laws do not recognize the purpose of overthrowing or changing them, in whole or in part, as a charitable use. This bequest, therefore, not being for a charitable purpose, nor for the benefit of any particular persons, and being unrestricted in point of time, is inoperative and void. For the same reason, the gift to the same object, of one-third of the residue of the testator's estate after the death of his daughter, Mrs. Eddy, and her daughter, Mrs. Bacon, is also invalid, and will go to his heirs-at-law as a resulting trust.

Decision third was on the right of women to hold judicial offices. To quote again from Allen's Reports:

On June 8, 1871, the following order was passed by the governor and council, and on June 10 transmitted to the Justices of the Supreme Judicial Court, who, on June 29, returned the reply which is annexed. Ordered, That the opinion of the Supreme Judicial Court be requested as to 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 appertaining to that office? Second—Under the laws of this commonwealth, would oaths and acknowledgments of deeds, taken before a married or unmarried woman duly appointed and qualified as a justice of the peace, be legal and valid?

Opinion.—By the constitution of the commonwealth, the office of justice of the peace is a judicial office, and must be exercised by the officer in person, and a woman, whether married or unmarried, cannot be appointed to such an office. The law of Massachusetts at the time of the adoption of the constitution, the whole frame and purport of the instrument itself, and the universal understanding and unbroken practical construction for the greater part of a century afterwards, all support this conclusion, and are inconsistent with any other. It follows that, if a woman should be formally appointed and commissioned as a justice of the peace, she would have no constitutional or legal authority to exercise any of the functions appertaining to that office. Each of the questions proposed must, therefore, be respectfully answered in the negative.

[Signed:]Reuben A. Chapman,Horace Gray, Jr.,

John Wells,James D. Colt,

Seth Ames,Marcus Morton.

Boston, June 29, 1871.

It is to be remarked that the clause on which the court determined its judgment was of no practical consequence, since the money devised had already been paid to Wendell Phillips, who had disposed of it as the bequest required, and he had given his receipt to the testator for the amount.

Even the Supreme Judicial Court of Massachusetts has begun to understand the trend of the woman's rights movement, and has rendered its first favorable decision, in the famous Eddy-will case. Wendell Phillips told me that he drew up this will, and that its provisions were so carefully worded, that even the Supreme Court could find no flaw in it. It is in his own hand-writing, and Chandler R. Ransom was the executor. Eliza F. Eddy was the daughter of Francis Jackson, and just before her death in 1882, desiring to help the suffrage cause and thus carry out her father's intentions, she made her will in which she bequeathed $40,000 for this purpose. The clause relating to this bequest is as follows:

Whatever is left, after paying the above legacies, I direct shall be divided into equal portions. One of said portions I leave to Susan B. Anthony of Rochester, N. Y.; and the other portion I leave to Lucy Stone, wife of Henry B. Blackwell, as her own absolute separate property, free from any control by him. I request said Susan and Lucy to use said fund thus given to further what is called the "Woman's Rights' Cause"; but neither of them is under any legal responsibility to any one or any court to do so.

Her will was filed and the Probate Court declared its validity. This decision was appealed from for several unimportant reasons by relatives of Mrs. Eddy, Francis W. and Jerome A. Bacon, minors; and the case was carried to the Supreme Judicial Court. After many delays it was finally decided in favor of the validity of the will, March, 1885, R. M. Morse, jr., and S. J. Elder for the plaintiff, and B. F. Butler and F. L. Washburn for the defendants. The court's final decision, rendered by Hon. Charles Devens, is as follows:

Albert F. Bacon and others, executors and others vs. Chandler R. Ransom, executor, and others.

Suffolk. March 18, 19, 1885. W. Allen, Colburn and Holmes, Js., absent.

After a bequest in trust to A. and B., to be by them expended in securing the passage of laws granting women the right to vote, had been decreed void as not being a charity, a daughter of the testator bequeathed the residue of her estate (being about the amount she had received from her father's estate) to A. and B. "as their absolute property"; and added: "I request said A. and B. to use said fund thus given to further what is called the Woman's Rights Cause. But neither of them is under any legal responsibility to any one or any court to do so." Held, that the bequest was valid, and did not create a trust.

Bill in equity by the executors of the will of Lizzie F. Bacon, and certain legatees thereunder, against the executor of the will of Eliza F. Eddy, Lucy Stone, wife of H. B. Blackwell, Susan B. Anthony, and other legatees thereunder, and the attorney-general, to compel the executor of said Eddy's will to pay over to the plaintiffs the residue of her estate. The bill alleged the following facts:

Francis Jackson, the father of said Eliza F. Eddy, died in 1861, leaving a will, by the sixth article of which he gave $5,000 to Wendell Phillips, Lucy Stone Blackwell and Susan B. Anthony, in trust, "to be expended by them without any responsibility to any one, at their discretion, in such sums, at such times, and in such places as they may deem fit, to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage and devise property, and all other civil rights enjoyed by men; and for the preparation and circulation of books, the delivery of lectures, and such other means as they may judge best." By the eighth article he gave one-third of the residue to a trustee, to pay the income to his daughter, Eliza F. Eddy, during her life, and upon her death one-half of the income to the trustees and on the trusts named in the sixth article, and the other half to Mrs. Eddy's daughter, Mrs. Lizzie F. Bacon, during her life, and, on the death of Mrs. Bacon, the principal to the trustees and on the trusts named in the sixth article.

It was held by this court that these bequests were not a charity (see Jackson vs. Phillips, 14 Allen, 539).

In consequence of this decision, certain agreements, releases, and a partition were made, by which one-third of the residue of Mr. Jackson's estate became the property of Mrs. Eddy, subject to being held in trust for herself for life, and thereafter, as to one-half, for her daughter, Mrs. Bacon, during her life. Mrs. Eddy died December 29, 1881, leaving a will by which she gave absolute legacies to the amount of $24,500 to various persons therein named. This disposed of all her estate except what came to her from her father's estate. Her will then provided as follows:

"What is left, after paying the above legacies, I direct shall be divided into two equal portions; one of said portions I leave to Miss Susan B. Anthony of Rochester, in the State of New York, as her absolute property, and the other portion I leave to Lucy Stone, wife of H. B. Blackwell, as her own absolute and separate property, free from any control of him. I request said Susan and Lucy to use said fund thus given to further what is called the woman's rights cause; but neither of them is under any legal responsibility to any one or any court to do so."

The will further alleged that this residue was substantially the estate received from Francis Jackson; that the will was intended by the testatrix to defeat the decision of this court, before mentioned; that the testatrix had no personal acquaintance with Lucy Stone or Susan B. Anthony; that said gift was intended as a gift in perpetuam to the said cause, and was, without limit of time, upon trust in favor of said cause; and that said cause was not a charity within the meaning of the law, and was null and void.

The defendants demurred to the bill for want of equity. The case was heard by C. Allen, J., on the bill and demurrer, and a decree was entered sustaining the demurrer and dismissing the bill. The plaintiffs appealed to the full court.

R. M. Morse, Jr., and S. J. Elder, for the plaintiffs.

B. F. Butler and F. L. Washburn, for the defendants.

Judge Charles Devens. The fact that the respective portions of the estate bequeathed by Mrs. Eddy to Mrs. Stone and Miss Anthony were in amount equal to-or precisely the same as those which came to her by descent from her father, Francis Jackson, is not of importance in the case at bar. It had been held in Jackson vs. Phillips, 14 Allen, 539, that a certain bequest made by Mr. Jackson in trust was not, legally speaking, a public charity, and that it could not therefore pass to the beneficiaries named in his will. The property which he thus attempted to bequeath descended therefore to his legal representatives, of whom Mrs. Eddy was one. She received it with the same right to deal with it or dispose of it in her lifetime, or by will at her decease, that she had in any other estate which was her lawful property.

The bill alleges "that said will was intended by the testatrix to defeat the decision of the court, before mentioned; that the testatrix had no personal acquaintance with Lucy Stone or Susan B. Anthony; that said gift was intended as a gift in perpetuam to the said cause." But if Mrs. Eddy has complied with the rules of law in the disposition of her property, even if she has hoped thereby to attain the same object as that desired by her father, the decision referred to is not defeated, but is recognized and conformed to; and, whatever her intention may have been, her bequest is to be upheld.

Her gift to her beneficiaries is absolute in terms. They may do what they will with the property bequeathed to them, as they may with any other property which is lawfully their own. It is true that the gift is accompanied by a request that they will use the fund bequeathed "to further what is called the woman's rights cause." A request made by one who has the right to direct is often, perhaps generally, interpreted as a command. For this reason, recommendatory or precatory words used in a bequest are frequently treated as an express direction. Thus, if a legacy were given to A., with a request that out of the sum bequeathed he would pay to another a certain sum, or a portion thereof, it might well be construed as a legacy, to the amount named, to such person. The expression of the desire of the testator would be the expression of his will, and the words in form recommendatory would be held to be mandatory and imperative. Where such words are used, it is therefore a question of the fair construction to be attributed to them (Whipple vs. Adams, 1 Met., 444; Warner vs. Bates, 98 Mass., 274; Spooner vs. Lovejoy, 108 Mass., 529).

But the testatrix in the case at bar has left nothing to construction. Apparently aware that a request, where she had a right to direct, might be treated as a command, and desirous to make it entirely clear that no restraint or duty in any legal sense was imposed upon her legatees, and that the request of the will was such in the limited sense of the word only, and in no respect mandatory, she adds thereto, referring to the legatees, "But neither of them is under any legal responsibility to any one or to any court to do so." Each of the legatees is therefore the sole judge of whether she will follow, or how far or in what way she will follow, the suggestion of the testatrix in the disposition of the estate absolutely bequeathed to her. It is a matter in which she is to be guided only by her judgment and conscience, and no trust is imposed upon the property she receives.

As no trust is created, it would be superfluous to consider whether, if the request of the testatrix were treated as a command, one would then be indicated capable of enforcement according to the rules of law.

[Signed:] Marcus Morton, Chief-Justice,

Bill dismissed.

Walbridge Abner Field,Charles Devens,

William Allen,Charles Allen,

Waldo Coburn,Oliver Wendell Holmes, Jr.

From these decisions our daughters should learn the importance of having some knowledge of law. Had not Mrs. Eddy learned from experience in her father's case that property could not be left in trust to any societies except those called religious and charitable, and made her bequest absolutely to persons, the gift of $56,000 would have been lost to the woman suffrage movement. As it was, nearly $10,000 was swallowed up in litigation to secure what the donees did finally obtain. Considering that Mrs. Eddy[157] is the only woman who has ever had both the desire and the power to make a large bequest to this cause, its friends have great reason to rejoice in her wisdom as well as her generosity.

Civilization would have been immeasurably farther advanced than it now is, had the many rich women, who have left large bequests to churches, and colleges for boys, concentrated their wealth and influence on the education, elevation and enfranchisement of their own sex. We trust that Mrs. Eddy's example may not be lost on the coming generation of women.—[Editors.

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