Rebels at the Bar

by Jill Norgren

  Critical of the eastern orientation of the national woman suffrage organizations, in 1912 McCulloch helped to create the Mississippi Valley Conference, which held annual conventions of midwestern suffrage leaders.74 In 1916, the Illinois Democratic Convention selected McCulloch as one of the presidential electors supporting Woodrow Wilson. A year later she was appointed master in chancery of the Cook County Superior Court, serving several terms.75 McCulloch also increased the time she was giving to her practice with Frank while serving the Woman’s Christian Temperance Union and, from 1916 to 1920, presiding over the Women’s Bar Association of Illinois. After the founding of the League of Women Voters, she served as a legal advisor.

  In her later years McCulloch sought to improve her understanding of the law, as well as to help legal professionals. In 1929 she and Frank jointly published A Manual of the Law of Will Contests in Illinois. In the 1930s the couple traveled widely, “studying progressive social legislation in other countries.”76 Catharine was said to have been particularly impressed with the Soviet Union’s legal system, “in which women took an important part.”77

  Women’s public role and rights were an abiding concern of McCulloch’s. At the time of her death in 1945 she had come a very long way from that day in Chicago when “bullet headed little Mr. B.” told her, “I don’t approve of women at the bar. … I advise you to … go home and take in sewing.” Unlike Mary Hall, she would not step back because some of the public did not accept the propriety of women in court, or thought that speaking in public would “unsex” them. Yet McCulloch and Hall both were women of singular accomplishment whose lives were a conversation in rebellion in the service of community. Each subverted contemporary mores and changed laws, using differing strategies and voices. Each benefited from the status and money of family, teasing from their advantaged lives the opportunity to use their legal knowledge outside of law offices or courtrooms—Hall as a philanthropist, McCulloch as a suffrage organizer and political candidate. Each, like Myra Bradwell, had firm ties to their communities that stood in marked contrast to their West Coast sister, Clara Foltz, whose wanderlust was unique among women who generally counted on local ties and status to build practices and win town and county elections.

  8

  Lelia Robinson and Mary Greene

  Two Women from Boston University School of Law

  Do not take sex into the practice. Don’t be “lady lawyers.” Simply be lawyers, and recognize no distinction. … Let no one regard you as a curiosity or a rara avis. Compel recognition of your ability.

  —Lelia J. Robinson, 1887

  THEY GAVE COMFORT to one another, Lelia Robinson and Mary Greene, in 1888 the only two women practicing law in Boston. Greene said of their friendship, “I think it is helpful to both of us to feel that neither is ‘the only woman lawyer in Massachusetts.’”1 Robinson agreed that more women lawyers meant each could “march on with a firmer and stronger tread.”2 Women of great intellect, they also had in common New England backgrounds, diplomas from Boston University School of Law, a love of writing, and a talent for the law. They welcomed praise but eschewed flash.

  Robinson, born in 1850, was senior in age and had launched her legal career six years before Greene began law school. Boston born and educated, at the age of twenty-one Robinson began writing for several Boston newspapers, including the Globe, the Post, and the Times. While the precise chronology is not clear, she also married in this period and spent time in Berlin as a foreign correspondent. Rupert Chute, the bridegroom, was exposed as a philanderer and so, despite the considerable social and religious stigma of divorce, Robinson took her wandering husband to court in 1878, ended the marriage, and at the age of twenty-eight resumed the use of her maiden name.3 In the same year, she entered Boston University School of Law. Mary Greene later wrote that Robinson did not enter with the “idea of becoming an apostle of woman’s rights, for at that time her views were extremely conservative.”4 Rather, Robinson was said to like to study and “felt that a woman could find a place for the successful practice of law.”5 Robinson’s acceptance of divorce and belief in society’s ability to embrace women as lawyers suggest that she was not quite as conservative as Greene portrayed her.

  Lelia Robinson (1850-1891). (Reprinted from The Green Bag, 1890.)

  Mary A. Greene (1857-1936). (Reprinted from A Woman of the Century, ed. Frances E. Willard and Mary A. Livermore [Buffalo, NY: C. W. Moulton, 1893].)

  Boston University’s law school opened in 1872 when Belva Lockwood was still fighting to join the Washington, D.C., bar and Myra Bradwell’s case awaited a decision from the U.S. Supreme Court. Pleasing some, and shocking others, the school declared itself a coeducational institution. According to tuition receipts, Robinson matriculated in October 1879. Two women had attended before her for a year and dropped out, making her the lone woman student among 150 men. She paid thirty-five dollars in tuition for her first term.6

  The law school used the traditional lecture method of teaching. To help to distinguish its program from Harvard’s, the Boston University curriculum encouraged the practical application of legal concepts. The school’s location at Ashburton Place, then the heart of Boston, placed students close to the local and federal courthouses where they were expected to “observe the organization and working of courts, the actual progress of the most notable cases, the arguments of eminent counsel, the ruling of judges, the processes of decision, exception, appeal, etc.”7

  Robinson arrived at Ashburton Place with the sort of practical questions common to tainted newcomers few wish to help. She introduced herself to the dean, but he introduced her neither to the faculty nor to the students.8 She was told to “sit anywhere” in the lecture hall when, in fact, seating was alphabetical. An “R,” she sat in the place of a “C,” a student too gentlemanly to oust her. Yet, unlike in Lockwood’s experience, her presence did not cause a rancorous environment in which the male scholars “growled,” although the faculty was “puzzled to understand why a woman should want to study law.”9

  Lockwood started law school with a group and a cause; Robinson walked the halls alone and was not identified with woman suffrage. Social and intuitive by nature, she thought it “absurd not to speak to these men whom I was to meet daily, for lack of an introduction,” so Robinson began “to bow and speak to all whose faces I could remember, wherever I met them, in school or out.” By behaving as though she belonged, Robinson did not feel out of place and the male students complimented her as a “good fellow.” Belong she did, in June 1881 graduating fourth in her class.

  Robinson’s parents and sister lived in Boston. She wished to practice law in the city in order to be close to them. Her experience, however, mirrored that of Goodell and McCulloch before her marriage. Boston’s male attorneys did not wish to bring a lady practitioner into their office. After “utterly failing” to obtain any sort of position at a law firm, she opened a tiny workplace of her own in a building used by lawyers, hung her diploma, sent out cards, and, with other members of her graduating class, applied for admission to the Massachusetts bar, the first woman to do so.10 Unlike the applications of the male graduates, hers was sent to Massachusetts’ supreme judicial court. Like any male lawyer without a license, Robinson could not take cases to trial without bar admission, a situation that would affect her reputation and earnings. She was not particularly surprised that the application had been culled from the others, but after two years of law school, and graduation with honors, Robinson was not about to be sidelined. Late in the summer she began writing a petition in defense of her right to take the bar examination.11

  In 1881 the rules required that an applicant for the bar be at least twenty-one years of age, a citizen of the commonwealth, and of good moral character. The petitioner also had to pass an examination administered by the superior court or supreme judicial court. Robinson’s brief argued that the term “citizen” included women, that it was a sex-neutral term, and that she should be examined. She also argued that in with
holding the opportunity to take the bar exam, the state was abridging privileges and immunities guaranteed by the U.S. Constitution’s Fourteenth Amendment.

  Bostonians—Puritans, American revolutionaries, abolitionists—have seldom shied from strong opinions. After the Civil War, fervor marked the range of viewpoints in the matter of women’s rights. In 1873, nearly a decade before Robinson’s bar application, several women, including Lucia Peabody, created a political tornado by winning election to the Boston School Committee. The women’s eligibility to serve was immediately challenged on the grounds of their sex. Peabody responded by filing for a writ of mandamus to compel the school commissioners to permit her to take office. The court refused. Sympathetic state legislators, seeing the issue differently, stepped in, supported the women’s right to hold this particular office, and enacted a law providing that women throughout Massachusetts, if elected, might serve on school committees.12 The liberalization was hardly breathtaking, but the legislation illustrated a divide between courts and legislatures replayed repeatedly, in those years, all over the United States.

  Men and women outside of government also did battle around the question of women’s rights. In 1869 Lucy Stone, Julia Ward Howe, and Henry Blackwell founded the American Woman Suffrage Association. Centered in Boston, the organization was dedicated to winning the vote for women. In 1870 they established the pro-rights Woman’s Journal, which put reform women all over the country in touch with one another, and publicized the achievements of pioneers like Robinson.

  But in Boston, the “Americans” found themselves on the other side of the table from equally formidable minds, citizens who opposed woman suffrage as staunchly as the reformers supported it. Louis D. Brandeis, rising star in the Boston legal community and future U.S. Supreme Court justice, in 1884 proudly wrote his brother Al that he had delivered a speech before a special state legislative committee against the (municipal) enfranchisement of women.13 Kate Gannett Wells, member of a well-known family of Unitarian ministers, joined him at this session, where she argued that women were politically naïve and emotional.14 In his 1886 novel The Bostonians, Henry James described Boston as “the city of reform.”15 However, in telling the story of Olive Chancellor, Verena Tarrant, and Basil Ransom, James revealed considerable discomfort with women’s rights. In nineteenth-century Boston, social convention and reform mixed uncomfortably, dating back to differences between the Transcendentalists, who often led unconventional lives, and the Brahmin Unitarians, who promoted many progressive causes but remained conventional about many things, including gender roles.16

  As Lelia Robinson’s case made its way to court, opponents repeated commonplace concerns: the unsexing of women who entered public life; the expected neglect of families; the anticipated link between liberalization of work laws and demands for suffrage, as well as variations on Brandeis’s belief that “the franchise was not a right but a privilege, and that the duties involved in exercise of the privilege should be imposed only upon men.”17 The Boston Bar Association, like the local bar in Mary Hall’s case, arranged for briefs in opposition. Two Boston attorneys also submitted amici curiae (friend of the court) briefs opposed to her admission.18 Robinson responded with a supplemental brief attacking these prejudices and stereotypes: “In the many states where women have been for years practicing as attorneys … [they] have proved that the ‘sweeping revolution of social order’ … has not followed as the result, natural or otherwise, of the admission of women to the bar.”19

  Lelia J. Robinson’s Case was argued before the full bench of the Massachusetts Supreme Judicial Court. Vividly demonstrating the bar’s division on the question, Robinson was represented in court by former attorney general C. R. Train.

  In November the decision came down denying Robinson’s petition, with the justices holding that she needed positive affirmation from the state legislature that Massachusetts women had the right to be admitted to the bar. Writing for the court, Chief Justice Horace Gray asserted that, given women’s historical exclusion from the practice of law, the word “citizen” in the legislation governing bar admission was not inclusive of the two sexes: “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 a voter or as an officer, or to be admitted to practice as an attorney.”20 Robinson was seemingly damned, whether the word “male” had or had not been used, as Gray went on to write, “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.’”21

  Like Belva Lockwood when rebuffed by the U.S. Court of Claims in 1874, Robinson quickly penned language for corrective legislation. The draft specifically authorized qualified women to take the bar examination and to practice in a court of law.22 At the end of January Massachusetts representative John Hopkins introduced bill number 214, which was assigned to the House Judiciary Committee, hearings to follow on March 15.23 Charles Train, Thomas Wentworth Higginson, and other prominent men supported the bill. Robinson primed public opinion prior to the hearings by appearing at the Boston Mercantile Library, where she spoke about women’s need to earn their living and, strategically, mentioned the need to help “overworked fathers and brothers.”24 She then testified for more than thirty minutes before the legislature.25 Robinson proceeded with care, insisting that there should be a departure from the “old-established order of things” but acknowledging that such change should be treated as “an experiment.” She assured the legislators that passage of the bill would not be a radical act, that fifteen territories and states already permitted women to practice law. Women lawyers would, she believed, limit themselves to appropriate areas of the profession and know their place in society. She argued that women attorneys would not influence juries with “smiles and tears” and, finally, that equal opportunity should guide lawmaking: women lawyers, like men, should be at “liberty to fail or succeed.”

  The bill passed quickly in both houses and was signed by the governor. It was a small coup in a year when the same legislature failed to vote municipal suffrage for Massachusetts women. In June Robinson became the first woman to take the Massachusetts bar examination—and to pass. She described the moment as crossing “the grand Rubicon which made me a full-fledged attorney.”26

  Robinson had crossed her Rubicon, had made an irrevocable commitment to law. Admission to the bar, however, did not assure her of clients, and she found herself sitting day after day in the small office having “to wait-wait-wearily wait” and “have the funds to endure it.”27 Unlike with Belva Lockwood, who claimed that her contests with the courts won her notice and clients, the attention paid to Robinson’s struggle did not bring her cases. Wryly, she commented that women were “more timid and reluctant to trust their affairs to the care of a woman lawyer than are men,” with the latter being apt to say, “Give her a chance.”28 Lockwood had her local connections and veteran pension clients, Goodell had her temperance ladies and a local judge, but Robinson reports having no Boston mentors to help her, in a city where people “are reluctant to trust any but gray hairs.”29 Perhaps inspired by Mary Hall’s appointment as a commissioner, in 1883 Robinson successfully lobbied for a bill permitting Massachusetts women to become special commissioners who could take depositions and affidavits and administer oaths.30 She won an appointment from the governor. She welcomed the work but did not find it challenging.

  Legal cases came in “very slowly” during her first three years of practice, and consisted mostly “of small and rather hopeless claims for collection.”31 Robinson would engage another lawyer if a case went to court. This meant paying over part of her fees, but like Mary Hall, Robinson had not originally intended to do court business “at all.”32 She later revealed that her friends in the profession in Boston had been contradictory concerning the “advisability of [her] doing court wor
k,” perhaps suggesting the influence of peer pressure.33

  Robinson appreciated that male attorneys also had a difficult time starting out. Still, in 1888, when she read the letter by Kittie Waugh (McCulloch) recounting how she “sallied forth to seek [her] fortune … and dragged back collapsed with chagrin and failure,” she laughed at the tremendous similarity of their early professional experiences.34 Kittie Waugh retreated to Rockford. Still unmarried, she used her spare time to earn a master’s degree and to write a thesis analyzing the inequality of women’s wages. Lelia Robinson initially stayed in Boston and made a rule that she would use her “waiting time” in study.35 She wanted study with a “specific object,” and in casting about discovered “the lack of any reliable treatise giving to the public at large those elementary principles of law which everyone must have in order to conduct the daily affairs of life intelligently.” She began the research for a book that, in 1886, became Law Made Easy: A Book for the People.