Rebels at the Bar

by Jill Norgren

  In April 1878, after an appropriate period of mourning had passed, Hooker, then state reporter for the Supreme Court of Errors, invited Hall to apprentice with him. While reading law, Hall worked with her mentor copying and preparing the opinions of the justices.5 She stayed with him for three years. After a year in his office, Hooker backed Hall for an appointment as a commissioner of the superior court. He endorsed her papers, as did the current and previous governor. She was the first woman in Connecticut to be given this commission, which authorized her, by law, to “sign writs and subpoenas, take recognizances, administer oaths and take depositions and the acknowledgment of deeds.”6 The appointment paralleled gains by women legal professionals across the country. Lockwood had been sworn in as a member of the Supreme Court of the United States only weeks before Hall received her commission, while in the same year Foltz and Gordon won their case against Hastings Law School. The number of women lawyers crawled forward; a few women won appointments as notaries.

  Elsewhere, however, government discrimination continued. In 1881, Lelia Robinson’s application to become the first female member of the Massachusetts bar was denied, as had become all too common, by the judiciary—in this case the Massachusetts Supreme Judicial Court. Like most of her sisters-in-law whose aspirations were pinioned by a court, Robinson was forced to turn to the state legislature to open the bar to women by statute.

  Mary Hall shunned publicity and had no desire to cast herself as a rebel. She was prepared to take the bar examination in 1881 but wrote Lelia Robinson—some years later—that she “thought seriously of going to some State where women were admitted to the bar, dreading the noise and criticism to which a pioneer in such a matter is always subject.”7 People in the community, however, “induced” Hall to make an application in her home state of Connecticut, which she did in March 1882. John Hooker certified her readiness and good character. He and his wife were among those who had wanted Hall to apply in Connecticut. As Hall had feared, there was “noise.” In A Woman of the Century, Frances Willard and Mary Livermore reported, “[T]he affair made a sensation. … She took her examination in an open court-room, and not under the most favorable circumstances, but went through the ordeal with credit.”8 The examiners included the local U.S. district attorney and three prominent lawyers from the Hartford County bar.

  Members of the county bar met after Hall’s successful examination and voted to admit her “subject to the advice of the [state] Supreme Court on its legality.”9 Many Connecticut newspapers had supported Hall, with editors at the Hartford Daily Courant writing that it would be “a confession of fear on the part of the men” not to admit her.10 The Waterbury Republican, with no mention of suffrage, opined that the question of women’s rights “is a bug-bear which men can most easily rid themselves of by throwing open all avenues of employment. Women’s natural limitations will quickly decide how far she can go with safety and self-respect, and for our part we would give her ample liberty to exhibit her ability, and do what she can for herself.”11

  Legislative action opened the opportunity of bar membership to qualified women in many places. State and federal courts, however, as Bradwell, Lockwood, Goodell, and Robinson knew, clung to conservative jurisprudence in the matter of women’s employment opportunities. Changes in state law or, in Lockwood’s case, congressional action reversed the decisions handed down to these four applicants.

  Mary Hall had better than average chances of obtaining a favorable ruling from the Connecticut Supreme Court of Errors, although that did not calm her nerves. She could not do much better than John Hooker as a sponsor. The men who had certified her on the bar examination were similarly well known and much respected. Thomas McManus, a former judge, submitted the brief in support of Hooker’s protégée. He reminded the justices that the language of the state law regulating attorneys “neither expressly or [sic] impliedly excludes women … that the word ‘attorney’ was always defined as a ‘person.’”12 He pointed to the tendency in state laws and judicial rulings “to give women equal right, scope and opportunity whenever possible.” Critically, he dismissed the U.S. Supreme Court’s 1873 ruling in Bradwell v. Illinois by observing that “Connecticut’s legal tradition was far older than the relatively young federal system” and that both the federal Fourteenth Amendment and relevant Connecticut constitutional law “were construed broadly, not restrictively.”

  The Hartford bar gave local attorney Goodwin Collier the unenviable task of submitting points in opposition, although the bar association was recommending Hall’s admission. Collier’s short brief identified the attorney licensing law as nearly “identical to the one in effect in 1708, and at that time the statute, and the common-law world, excluded women from the Bar.”13 The legislature had not expressly changed the statute to include women applicants, leaving Collier to reason that it still intended to exclude them. He cited judicial rulings in the Bradwell, Goodell, and Lockwood cases although each had been superseded by legislative action. It appears that Collier, knowing of these legislative endorsements, thought it appropriate for the Connecticut legislature, not the high court, to settle the matter of Mary Hall’s professional rights.

  The publicity-shy applicant found herself the subject of articles printed in newspapers around the country. Writers shook their heads at the idea of ancient laws commanding respect and suggested that Connecticut had too many “fogies.” There was a time in Connecticut, one particular Florida journalist ribbed, “when a young woman would probably be burned as a witch had she asked to be recognized as a lawyer. It is rather different now, although there are people still living who regularly get excited over a matter like that.”14 Oral argument was held on May 5, 1882, and ten weeks later the state supreme court issued a ruling that favored Hall.15

  Chief Justice John D. Park wrote for the majority.16 He opened by noting that it was not contended that the language of the statute regulating admission of attorneys by the superior court was not sufficiently comprehensive to include women. Rather, opponents’ claim centered on the fact that women had never been admitted as attorneys, and that a common-law disability had been established in Connecticut that could only be removed by explicit statutory language. Park answered by asserting that the state statute in question, revised in 1875, “is ample for removing that disability.”17 He added that “progress in social matters is gradual. We pass almost imperceptibly from a state of public opinion that utterly condemns some course of action to one that strongly approves it.”18 It was the case, he felt, that when revising the statute in 1875, state legislators left in the words “such persons … with full knowledge that they were sufficient to include women, and that women were already following the profession of law in different parts of the country.”19 Without naming Hall, Park also noted that a woman had served as a commissioner of the superior court under a similar statute. Critically, he asserted, “[W]e are not to forget that all statutes are to be construed, as far as possible, in favor of equality of rights. All restrictions upon human liberty, all claims for special privileges, are to be regarded as having the presumption of law against them … and can be sustained, if at all … by the clear expression or clear implication of the law.”20

  Writing in dissent, Justice W. Pardee stayed close to the points in Collier’s brief. He argued, in a mere two sentences, that women were not admitted to the bar at common law, and that it was the duty of the court to “follow rather than precede the legislature in declaring that it has changed its mind.”21

  The Hall decision was pathbreaking as the first judicial decision in the United States to hold that qualified women could not be barred from practicing law, that what was due to men was also due to women. Hall broke new ground by reasoning that “the laws of equal protection applied to all citizens, women included.22 Chief Justice Park did not assert that the Fourteenth Amendment to the federal Constitution gave women equal rights. Rather, he teased his ruling from the existence of the Fourteenth Amendment, and the transformation of women’s civic
and social lives.

  Not surprisingly, Lelia Robinson, in Boston, sent her congratulations and asked Hall for a copy of the decision.23 Equally predictably, newspapers praised but also questioned the decision. Clara Foltz had once observed that only the poor and desperate come to women trial lawyers. With some irony, the New York Times agreed with her, questioning the likelihood that women attorneys would draw a strong client list:

  Litigants are commonly guided in the choice of counsel by hard practical reasons. They employ lawyers who can win their suits. … [I]n delicate and difficult cases comparatively few parties to a suit would trust their property or their liberty into the hands of a female attorney for the same reason that a man about to shave himself would not employ the convex mirror.24

  Hall took her attorney’s oath on October 3, 1882. Soon after, she was appointed Connecticut’s first woman notary. For eight years she was the only woman lawyer in the state. Hall practiced out of John Hooker’s office for many years before establishing an office of her own. She continued to assist him in the preparation of the Connecticut Reports while carving out probate work as her specialty. Her clients were generally women with property issues, or in need of a will.

  Illinois attorney Catharine Waugh McCulloch described Hall in a letter to members of the Equity Club. The club was a women lawyers correspondence group (letters were circulated) founded in 1886 by women trained in law at the University of Michigan, and so named because “equity [law] has been the savior of woman.”25

  McCulloch wrote that Hall “wears her hair in long curls. … She says she confines herself strictly to office work, as public sentiment would be much against a woman’s speaking in court.”26 Hall also avoided almost all cases involving divorce. Mid-career, she made a rare appearance in superior court on behalf of a male client, Jacob Lipp, but withdrew once Lipp secured other counsel.27 Lelia Robinson reported in her 1890 survey of American women lawyers that Hall had been in constant practice since her admission to the bar, “supporting herself comfortably. … [and doing] little court work, usually turning that over to her brothers of the profession.”28 In short, Hall had a quiet, rewarding local practice that suited her personality and the demands of her other interests. Her story could not have been more different from that of Clara Foltz.

  In the matter of suffrage, however, Hall’s attitudes did mirror those of most of the “rebels.” She threw herself into the struggle, in 1885 helping to found the Hartford Woman Suffrage Club, and serving as its vice president. McManus and Park had emphasized the “tendency” in Connecticut to give women equal rights and opportunity. In reality, the state’s record was mixed. The Hookers had successfully lobbied for an 1877 married women’s property rights bill, but year after year the legislature defeated bills to grant woman suffrage. In 1886 Connecticut women became eligible to be school trustees; three years later the legislature permitted women to become assistant town clerks. In 1893, years after similar reform in other states, a school suffrage law passed permitting women to vote in school board elections.29 The state never enacted a full woman suffrage statute, or constitutional amendment, and women could not vote in Connecticut until passage of the federal suffrage amendment in 1920.

  Hall had strong views about women lawyers in court. She had equally strong opinions about the organization and ideology of suffrage. Early in the history of the Hartford Suffrage Club she opposed an attempt to join the work of the club to that of the Woman’s Christian Temperance Union.30 In the same months Hall, a churchgoer, took the lead in a spirited written exchange between suffrage club members and Elizabeth Cady Stanton over the relationship between women’s rights and Christianity. Stanton wished to interrogate religious creeds, and to emancipate women “from their religious terrors” by showing how “they all alike degrade the sex, and make us slave and subjects, Pariahs and outcasts.”31 Hall suggested that suffrage women “dig into the past” and believed, unlike Stanton, that early Christian writings had value with respect to the question of women and their rights.32

  Mary Hall had a second identity as a philanthropist. In the winter of 1880, while reading law, she founded the Good Will Club, a charity for poor boys, in particular, newsboys. Willard and Livermore wrote that Hall “gathered a few boys from the streets and read them stories, played games,” or talked about natural history, geology, and other topics “calculated to arouse interest and inspire observation and investigation.”33 The boys promised not to swear, smoke, or drink. In the early years of the club, in warm weather, the boys camped on Hall’s property in Marlborough, Connecticut. Hall told Willard and Livermore that her plan was neither that of a day school nor that of a Sunday school but simply an arrangement to afford these children entertainment that would draw them away from “the bad life of the streets.”34 Hall began with nine boys. By 1890 more than eight hundred children were involved in the club, which eventually grew to have nearly three thousand members. The club grew out of post–Civil War reform concerns but also fit easily into ideas of rehabilitation associated with the turn-of-the-century Progressive movement.

  Hall practiced law until the early 1920s but, from 1900 on, she spent an increasing amount of time ensuring the success of the Good Will Club and lobbying issues related to making children’s lives safer or less severe. As a member of the State Board of Charities, she investigated state charitable institutions. She scrutinized prison and juvenile facilities in other states and countries. She supported the right of girls to sell newspapers as a way of preventing delinquency (presumably, prostitution), a position she argued in 1905 before a hearing of the state judiciary committee.35 Her personal work for the Good Will Club helped to encourage many young men onto a path of education and upward mobility.

  Hall died at the age of eighty-four on November 15, 1927. The Hartford County Bar Association sent a committee of ten to her funeral. The group included the bar president and the recently graduated woman lawyer, J. Agnes Burns.36

  In re Mary Hall was a landmark decision in Connecticut. The ruling represented progress in the state’s support of equal rights. It opened the way for Hall to practice. Based on the reasoning in the opinion, in 1889 the state also opened the profession of druggist to women. A year later, Lelia Robinson represented Marilla Ricker in her successful bid to give women lawyers the opportunity to become members of the New Hampshire bar. In deciding Ricker’s Petition, Chief Justice Charles Doe rejected the opinion of the Massachusetts court in Robinson’s case, and relied on important aspects of the Hall decision.37 Later still, the New Mexico Supreme Court cited Hall when holding that women might be appointed to the office of state librarian even though they lacked the right to vote.38

  The Hall decision was celebrated as a progressive marker in the fight for women’s rights. Ironically, however, Hall was criticized. Certain women in the legal community found Hall insufficiently bold for confining herself to office work and believing that “public sentiment would be much against a woman’s speaking in court.” Her stance was much debated, and not infrequently deplored, by other women lawyers. The dispute centered on the propriety of public speaking and whether it would “unsex” a woman.

  The purely professional issue was weighty: would women attorneys have an unfair advantage with all-male juries, thus putting in peril the very foundation of the American judicial system? One male opposing counsel, who held nothing back in stating this fear, said, “Lady lawyers [are] dangerous to justice inasmuch as an impartial jury would be impossible when a lovely woman pleaded the case of the criminal.”39 Women lawyers would “produce the wrong results” by clouding the reasoning abilities of witnesses, juries, and even judges.40

  Catharine Waugh was one of the attorneys who found Hall’s decision to leave court appearances to the men deeply disturbing. Waugh used her membership in the Equity Club to circulate a letter in 1888 in which she essentially invited Hall into a conversation: “Some bristling aggressive woman lawyer ought to stir up those slow going people or Miss Hall had better come to Illinois, whe
re it is just as honorable for a woman to talk to men publicly as in private.”41 Hall, dignified to a fault, maintained silence and continued to stay out of court.

  Catharine Waugh, the oldest child of farmers, was born in 1862 in New York State. Her parents, Susan and Abraham Waugh, brought the family to New Milford, Illinois, five years later. Known to her family as Kittie, she read voraciously and, like Mary Hall, was encouraged to get an education. Her father supported the spunk and independence exhibited by his oldest child, a feisty girl who was not intimidated by the neighbor boys who teased her.42

  Waugh entered the nearby Rockford Seminary in 1878. The all-girls school was “an evangelical Christian institution.” The principal, Anna Sill, was committed “to encouraging her ‘unsaved’ students to convert while under her care.”43 Waugh was a year behind Jane Addams at Rockford, and took at least one advanced math course with her. Later, when they were adults in Chicago, their paths crossed with some frequency. In 1909 they organized the “Women’s Special,” a chartered train carrying women to the state capital to lobby for suffrage. Despite several interests in common, the two women did not develop a deep friendship, at school or as adults.44