9 Ct. Cl. 346 | Ct. Cl. | 1873
delivered the opinion of the court:
This is an application in effect, though not in purpose, to have the law declared to be that the wife of a judge of a United States court may appear at its bar, and, being found duly qualified, be admitted to the practice of the law before her husband. This effect of the application has probably not entered the mind of the applicant, but it is nevertheless the duty of the court to survey the entire limits of the legal situation, and foresee the effects which must necessarily follow the guant of her petition. For, if she be lawfully entitled to admission to this bar, no discrimination can be made between her and every other married woman, properly qualified, domiciled in the District of Columbia; and if it be true that there is no law to pre-venta woman from acquiring tbe office of anjattorney, it is equally true that there is no law to forbid the wives of the judges and law-officers of the G-overnment from acquiring the same privilege. Therefore, if we decide that this application should be granted, we must at the same time decide] that two beings whom the common law regards in every material interest, as nearly as possible, as one, can discharge, without detriment to the interests of public justice, the dissimilar duties of arbiter and advocate.
Before this application can be granted there are three questions which must be considered: First, is there any statutory law allowing women to practice in the courts of the United States % Second, if there be none, was there any precedent of the kind at the time when this court was established ? Third, if there is neither positive enactment nor established precedent to sustain this application, would a woman be entitled to admission at common law %
All of these questions, it is confessed, must be answered in the negative. Nevertheless, it is insisted that, in the absence of positive legal prohibition, the enlarged liberalism of modern society and the statutory changes which have been made in the law of husband and wife will warrant the court in admitting a woman to its bar. There is, indeed, a statute relating to the
The common law has always regarded the family as the unit of society; the civil law the individual. Hence at the civil law marriage was little more than a partnership, into which individuals could enter at will, the terms of which they could vary by agreement, the profits of which were to be the property of each, and the bands of which they might dissolve at pleasure. At the common law the family has always been regarded as a sacred entirety, with regard to which the rights and freedom and convenience and wishes of every person connected with it must yield. Its bands were indissoluble, and the duties and obligations connected with it were to be scrupulously enforced. For an absolutely Christian and moral community, whose property consists chiefly of land, the common law in respect to marriage would still continue to be the perfection of
When we pass from the relations of husband and wife to the office of attorney, we find certain responsibilities inseparable
In the case now before us it has been intimated that the admission of the party is sought- with the husband’s knowledge, and that she may be appointed by his consent. But a court cannot make an exceptional rule, which will apply to one party and not to another 5 nor can it change the existing law, so as to hold a woman to the full responsibility of an attorney ; nor can it change the legal relations of husband and wife “by consent,” any more than it can grant divorces “by consent.”
So far as the rule of this court is concerned, it contemplates only the admission of men. Its language is that “ no counsel will be permitted to practice in the court unless he is a man of good moral character.” It cannot be denied that the masculine gender, which is generally used in statutes, frequently embraces the feminine; but if a masculine word receives any such latitude of construction, it is when it is applied to those cases where law and custom recognize men and women as standing upon the same ground of right or responsibility; the general rule being that words are to be construed according to their usual meaning. Certainly it is not obligatory on courts to construe them otherwise, unless that is made obligatory by legislation. There is no such legislation affecting this court or its rules, and certainly when the rules were made the word “ man” was used in its usual and literal meaning, and, so used, expressed all that the court then intended.
If a statute require that the owner of a city lot shall remove the snow from his sidewalk, it will be held to extend to men, women, and children; for the statute is directed indiscriminately tó the owners of property, and pre-existing law and usage have regarded the owners of property as liable to certain charges ■upon it, without reference to their age or sex. ■ But the word “man,” in a statute exacting military service, would not be construed to include women, for the pre-existing law, that is to say 23 C 0
It is not for the judiciary to intermeddle with'the question as to what is or what is not the “proper sphere of woman.1’ It is enough for judges to know that her legal position is by an unwritten law interwoven with the very fabric of society, and that when society frames constitutions of government it places them upon a foundation of its own immemorial usages, which society can reconstruct, but as to which it may be doubted whether even the legislative power has authority to overturn.
It is said in the argument that the whole subject of the admission of attorneys is within the discretion of a court; but this is not strictly true. Admission to the bar constitutes an office. In the first days of attorneys of record the office existed only by appointment of the Crown, and during our earlier history the power of appointment was exercised exclusively by the colonial governors. In both England and this country the power of appointment was conferred upon courts by statute. (4 Henry IV, chap. 18; New York Constitution 1777, sec. 27; In re Cooper, 22 N. Y., p. 80.) The appointment to the office by a court is a judicial act. (Ex parte Secombe, 19 How., p. 9.) Eefusal to admit a person conceded to be properly qualified is a judgment subject to the reversal of an appellate court. (In re Cooper.) Disbarring an attorney is likewise a judicial act, in like manner subject to be reversed. (Ex parte Heyfron, 7 How. Miss., p. 127. Ex parte Robenson, S. C., present term.) Courts of the United States, for convenience, recognize admission to the bar of State courts as proof
It is to be understood that the decision of this court does not rest upon those grounds which would make its judgment final. We do not, in legal effect, pass upon the individual application before us, but refuse to act upon it for want of jurisdiction. Our decision is not necessarily final, and there is express authority for saying that if we err, the Supreme Court can review our error and give relief to the applicant by mandamus. (Roberts’ Mandamus, 8 C. Cls. B., p. 118.) The position which this court assumes is 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 attorney.