In re the Motion to admit Goodell to the Bar of this Court

39 Wis. 232 | Wis. | 1875

Kyan, C. J.

In courts proceeding according to tbe course of tbe common law, a bar is almost as essential as a bench. And a good bar may be said to be a necessity of a good court. This is not always understood, perhaps not fully by tbe bar itself. On tbe bench, tbe lesson is soon learned that tbe facility and accuracy of judicial labor are largely dependent on tbe learning and ability of the bar. And it well becomes every court to be careful of its bar and jealous of tbe rule of admission to it, with tbe view of fostering in it tbe highest order of professional excellence.

Tbe constitution makes no express provision for tbe bar. But it establishes courts, amongst which it distributes all tbe jurisdiction of all tbe courts of Westminster Hall, in equity and at common law. Putnam v. Sweet, 2 Pin., 302. And it vests in tbe courts all tbe judicial power of tbe state. Tbe constitutional establishment of such courts appears to carry with it tbe power to establish a bar to practice in them. And admission to tbe bar appears to be a judicial power. It may therefore become a very grave question for adjudication here, whether tbe constitution does not entrust tbe rule of admissions to tbe bar, as well as of expulsion from it, exclusively to tbe discretion of tbe courts.

Tbe legislature bas, indeed, from’ time to time, assumed power”to prescribe rules for tbe admission of attorneys to practice. When these bave seemed reasonable and just, it bas generally, we think, been tbe pleasure of tbe courts to act upon such statutes, in deference to tbe wishes of a coordinate branch of tbe government, without considering tbe question of power. We do not understand that tbe circuit courts generally yielded to tbe unwise and unseemly act of 1849, which assumed to force upon tbe courts as attorneys, any persons of good moral character, however unlearned or even illiterate; however disqualified, by nature, education or habit, for tbe important trusts of tbe profession. We learn from tbe clerk of this court that no application under that statute was ever made here. .The good sense of tbe legislature bas long since led to its repeal. And we bave too much reliance on the judgment of tbe legislature to apprehend another such attempt to degrade tbe courts. Tbe state suffers essentially by every such assault of one branch of tbe government upon another; and it is tbe duty of all tbe coordinate branches scrupulously to avoid even all seeming of such. If, unfortunately, such an attack upon tbe dignity of tbe courts should again be made, it will be time for them to inquire whether tbe rule of admission be within tbe legislative or tbe judicial power. Rut we will not anticipate such an unwise and unbecoming interference in what so peculiarly concerns tbe courts, whether tbe power to make it exists or not. In tbe meantime, it is a pleasure to defer to all reasonable statutes on tbe subject. And we will decide this motion on tbe present statutes, without passing on their binding force.

This is tbe first application for admission of a female to tbe bar of this court. And it is just matter for congratulation that it is made in favor of a lady whose character raises no personal objection: something perhaps not always to be looked for in women wbo forsake the ways of tlieir sex for the ways of ours.

The statute provides for admission of attorneys in a circuit court upon examination to the satisfaction of the judge, and for the right of persons so admitted to practice in all courts here except this; but that to entitle any one to practice in this court he shall be licensed by order of this court. Tay. Stats., ch. 119, §§ 31, 32, 33. "While these sections give a rule to the circuit courts, they avoid giving any to this court, leaving admission here, as it ought to be, in the discretion of the court. This is, perhaps, a sufficient answer to the present application, which is not addressed to our discretion, but proceeds on assumed right founded on admission in a circuit court. But the novel positions on which the motion was pressed appear to call for a broader answer.'

The language of the statute, of itself, confessedly applies to males only. But it is insisted that. the rule of construction found in subd. 2, sec. 1, ch. 5, E. S., necessarily extends the terms of the statute to females. The rule is that words in the singular number may be construed plural, and in the plural, singular; and that words of the. masculine gender may be applied to females; unless, in either case; such construction would be inconsistent with the manifest intention of the legislature.

This was pressed upon us, as if it were a new rule of construction, of peculiar application to our statutes. "We do not so understand it. It appears to be but a particular application of the general rule thus stated by TiNdall, C. J": “ The only rule for the construction of acts of parliament is, that they should be construed according to the intent of the parliament which passed the act.” And it is not new or peculiar here. Potter’s Dwarris, 111. The last clause of the rule, relating to sex, seems to be almost as old as Magna Charta. Coke, 2 Inst., 45. We apprehend that, unless in the construction of penal statutes, it has ' been little questioned since the much considered case of King v. Wiseman, Fortescue, 91. The rule is permissive only, as an aid in giving effect to tire true intent of the legislature. Even of a statutory rule positive in terms, Lord DeNMAN said: “It is not to be taken as substituting one set of words for another, nor as strictly defining what the meaning of a word must be under all circumstances. We rather think that it merely declares what persons may be included within a term, when the circumstances require that they should.” Queen v. Justices, etc., 7 A. & E., 480. So, a fortiori, of the permissive rule here.

And the argument for this motion is simply this: that the application of this permissive rule of construction to a provision applicable in terms to males only, has effect, without other sign of legislative intent, to admit females to the bar from which the common law has excluded them ever since courts have administered the common law. This is sufficiently startling. But the argument cannot stop there. Its logic goes far beyond the bar. The same peremptory rule of construction would reach all or nearly all the functions of the state government, would obliterate almost all distinction of sex in our statutory corpus jv/ris, and make females eligible to almost all offices under our statutes, municipal and state, executive, legislative and judicial, except so far as the constitution may interpose a virile qualification. Indeed the argument appears to overrule even this exception. For we were referred to a case in Iowa, which unfortunately wo do not find in the reports of that state, holding a woman not excluded by the statutory description of “ any white male person.” If we should follow that authority in ignoring the distinction of sex, we do not perceive why it should not emasculate the constitution itself and include females in the constitutional right of male suffrage and male qualification. Such a rule would be one of judicial revolution, not of judicial construction. There is nor sign nor symptom in our statute law of any legislative imagination of such a radical change in the economy of the state government. There are many tbe other way; an irresistible presumption that the legislature never contemplated such confusion of functions between the'sexes. The application of the permissive rule of construction here would not be in aid of the legislative intention, but in open defiance of it. "We cannot stultify the court by holding that the legislature intended to bring about, %>er mibages, a sweeping revolution of social order, by adopting a very innocent rule of statutory construction.

Some attempt was made to give plausibility to the particular construction urged upon us, founded on ch. 117 of 1867, and ch. 79 of 1870. It was represented that the former admits women to every department of the university, excepting the military only, and so necessarily including the law department; that the latter directs admission to the bar of the graduates of the law department; that the legislature had thus provided for the admission of female graduates of the law school, and ought therefore to be understood as intending the admission of women under the general statute. If the legislature had so provided for the admission of female graduates, we do not perceive how that could aid the construction of the general statute, or this lady, who does not appear to be a graduate. Rut, unfortunately for the position, the statutes were not stated with the fair accuracy which becomes counsel, and do not support it.

The act of 1867 is an amendment of sec. 4 of the act of 1866, reorganizing the university. The section of 1866 provided, without qualification, that “ the university in all its departments and colleges shall be open alike to male and female students.” The section of 1867 substitutes the provision, that “ the university shall be open to female as well as male students, under such regulations and restrictions as the board of regents may deem proper.” In both statutes, the section provides that all able bodied male students shall receive military instruction, and makes no other reference to a military department. And tbe argument that tbe admission of females under tbe statute of 1867, to all departments except tbe military, necessarily contemplated tbeir admission to tbe law department, falls to tbe ground, because tbe statute neither mentions all departments nor excepts the military — if there be a military — department.

The inaccuracy is tbe more striking from tbe fact that tbe section of 1866 does expressly include all departments and colleges, and tbe amendment of 1867, evidently ex industria, omits them. Tbe change of an absolute right of admisssion to all departments and colleges of the university in 1866, to admission to tbe university under discretionary regulations and restrictions of tbe regents in 1867, is very significant; tbe more so that it is tbe only amendment made. It seems likely that tbe legislature came to regard tbe absolute and indiscriminate right of 1866 as dangerously broad, and to consider it necessary to make tbe right subordinate to tbe judgment of tbe regents. And if tbe law school bad then been established by statute, it would be very doubtful whether tbe admission of females to it would be sanctioned by tbe act of 1867. But there was no such statute; and tbe law school was in fact established, not by statute, but, as we learn, by tbe authorities of tbe university, some time in 1868, after tbe enactment of tbe section in both forms. Tbe first class of students, all males, graduated in 1869, without color of right to practice. Hence tbe statute of 1870, to give tbe right, presumably passed without thought of tbe admission of females to tbe bar. And tbe general argument for this motion takes nothing by these statutes.

So we find no statutory authority for tbe admission of females to tbe bar of any court of this state. And, with all tbe respect and sympathy for this lady which all men owe to all good women, we cannot regret that we do not. We cannot but think tbe common law wise in excluding women from tbe profession of tbe law. Tbe profession enters largely into the well being of society; and, to be honorably filled and safely to society, exacts the devotion of life. The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature; and when voluntary, treason against it. The cruel chances of life sometimes baifie both sexes, and may leave women free from the peculiar duties of their sex. These may need employment, and should be welcome to any not derogatory to their sex and its proprieties, or inconsistent with the good order of society. But it is public policy to provide for the sex, not for its superfluous members; and not to tempt women from the proper duties of their sex by opening to them duties peculiar tq ours. There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quiet sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife. Mature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field. Womanhood is moulded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice; all tlie unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, aboi’tion, infanticide, obscene publications, libel and slander of sex, impotence, divorce: all the nameless catalogue of indecencies, la olwon/ique scandaleuse of all the vices and all tbe infirmities of all society, with which the profession has to deal, and which go towards filling judicial reports which must be read for accurate knowledge of the law. This is bad enough for men. We hold in too high reverence the sex without which, as is truly and beautifully written, le coormieneement de la vie est sans secourrs, le milieu sans plaisir, et le fin sons consolation, voluntarily to commit it to such studies and such occupations. Non taU cmxilño nee defiensoribus istis, should juridical contests be upheld. Reverence for all womanhood would suffer in' the public spectacle of woman so instructed and so engaged. This motion gives appropriate evidence of this truth. No modest woman could read without pain and self abasement, no Avoman could so overcome the instincts of sex as publicly to discuss, the case which we had occasion to. cite supra, King v. Wiseman. And when counsel was arguing for this lady that the word, person, in sec. 32, ch. 119, necessarily includes females, her presence made it impossible to suggest to him as reductio acl absurdtm, of his position, that the same construction of the same word in sec. 1, ch. 37, would subject woman to prosecution for the paternity of a bastard, and in secs. 39, 40, ch. 164, to prosecution for rape. Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety. If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.

By the Court. — The motion is denied.