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He is an officer
of the court, holding his commission in this State, from two of
the members of this court, and subject to be disbarred by this
court for what our statute calls "mal-conduct in his office." He
is appointed to assist in the administration of justice, is
required to take an oath of office, and is privileged from arrest
while attending courts.

Our statute provides that no person shall be permitted to
practice as an attorney or counselor-at-law, without having
previously obtained a license for that purpose from two of the
justices of the Supreme Court. By the second section of the act,
it is provided that no person shall be entitled to receive a
license until he shall have obtained a certificate, from the
court of some county, of his good moral character, and this is
the only express limitation upon the exercise of the power thus
intrusted to this court. In all other respects it is left to our
discretion to establish the rules by which admission to this
office shall be determined. But this discretion is not an
arbitrary one, and must be held subject to at least two
limitations. One is, that the court should establish such terms
of admission as will promote the proper administration of
justice; the second, that it should not admit any persons or
class of persons who are not intended by the Legislature to be
admitted, even though their exclusion is not expressly required
by the statute.

The substance of the last limitation is simply that this
important trust reposed in us should be exercised in conformity
with the designs of the power creating it.

Whether, in the existing social relations between men and women,
it would promote the proper administration of justice, and the
general well-being of society, to permit women to engage in the
trial of cases at the bar, is a question opening a wide field of
discussion upon which it is not necessary for us to enter. It is
sufficient to say that, in our opinion, the other implied
limitation upon our power, to which we have above referred, must
operate to prevent our admitting women to the office of
attorney-at-law. If we were to admit them, we should be
exercising the authority conferred upon us in a manner which, we
are fully satisfied, was never contemplated by the Legislature.

Upon this question it seems to us neither this applicant herself,
nor any unprejudiced and intelligent person, can entertain the
slightest doubt. It is to be remembered that at the time this
statute was enacted we had, by express provision, adopted the
common law of England; and, with three exceptions, the statutes
of that country passed prior to the fourth year of James the
First, so far as they were applicable to our condition.

It is to be also remembered that female attorneys-at-law were
unknown in England, and a proposition that a woman should enter
the courts of Westminster Hall in that capacity, or as a
barrister, would have created hardly less astonishment than one
that she should ascend the bench of Bishops, or be elected to a
seat in the House of Commons. It is to be further remembered,
that when our act was passed, that school of reform which claims
for women participation in the making and administering of the
laws had not then arisen, or, if here and there a writer had
advanced such theories, they were regarded rather as abstract
speculations than as an actual basis for action.

That God designed the sexes to occupy different spheres of
action, and that it belonged to men to make, apply, and execute
the laws, was regarded as an almost axiomatic truth. It may have
been a radical error, and we are by no means certain it was not,
but that this was the universal belief certainly admits of no
denial. A direct participation in the affairs of government, in
even the most elementary form, namely, the right of suffrage, was
not then claimed, and has not yet been conceded, unless recently
in one of the newly-settled Territories of the West.

In view of these facts, we are certainly warranted in saying,
that when the Legislature gave to this court the power of
granting licenses to practice law, it was with not the slightest
expectation that this privilege would be extended equally to men
and women.

Neither has there been any legislation since that period which
would justify us in presuming a change in the legislative
intent. Our laws to-day in regard to women, are substantially
what they have always been, except in the change wrought by the
acts of 1861 and 1869, giving to married women the right to
control their own property and earnings.

Whatever, then, may be our individual opinions as to the
admission of women to the bar, we do not deem ourselves at
liberty to exercise our power in a mode never contemplated by the
Legislature, and inconsistent with the usages of courts of the
common law from the origin of the system to the present day.

But it is not merely an immense innovation in our own usages as a
court that we are asked to make. This step, if taken by us, would
mean that in the opinion of this tribunal, every civil office in
this State may be filled by women--that it is in harmony with the
spirit of our Constitution and laws that women should be made
governors, judges, and sheriffs. This we are not yet prepared to
hold.

In our opinion, it is not the province of a court to attempt, by
giving a new interpretation to an ancient statute, to introduce
so important a change in the legal position of one-half the
people. Courts of justice were not intended to be made the
instruments of pushing forward measures of popular reform. If it
be desirable that those offices which we have borrowed from the
English law, and which from their origin some centuries ago down
to the present time, have been filled exclusively by men, should
also be made accessible to women, then let the change be made,
but let it be made by that department of the Government to whom
the Constitution has intrusted the power of changing the laws.
The great body of our law rests merely upon ancient usage. The
right of a husband in this State to the personal property of his
wife, before the act of 1861, rested simply upon such usage, yet
who could have justified this court if, prior to the passage of
that act, it had solemnly decided that it was unreasonable that
the property of the wife should vest in the husband, and this
usage should no longer be recognized? Yet was it not as
unreasonable that a woman by marriage should lose the title of
her personal property, as it is that she should not receive from
us a license to practice law? The rule in both cases, until the
law of 1861, rested upon the same common law usage and could have
pleaded the same antiquity. In the one case it was never
pretended that this court could properly overturn the rule, and
we do not see how we could be justified should we disregard it in
the other. The principle can not be too strictly and
conscientiously observed, that each of the three departments of
the Government should avoid encroachment upon the other, and that
it does not belong to the judiciary to attempt to inaugurate
great social or political reforms. The mere fact that women have
never been licensed as attorneys-at-law is, in a tribunal where
immemorial usage is as much respected as it is and ought to be in
courts of justice, a sufficient reason for declining to exercise
our discretion in their favor, until the propriety of their
participating in the offices of State and the administration of
public affairs shall have been recognized by the law-making
department of the Government--that department to which the
initiative in great measures of reform properly belongs. For us
to attempt, in a matter of this importance, to inaugurate a
practice at variance with all the precedents of the law we are
sworn to administer, would be an act of judicial usurpation
deserving of the gravest censure. If we could disregard, in this
matter, the authority of those unwritten usages which make the
great body of our law, we might do so in any other, and the
dearest rights of person and property would become a matter of
mere judicial discretion.

But it is said the 28th section of chapter 90 of the Revised
Statutes of 1845 provides that, whenever any person is referred
to in the statute by words importing the masculine gender,
females as well as males shall be deemed to be included. But the
36th section of the same chapter provides that this rule of
construction shall not apply where there is anything in the
subject or context repugnant to such construction. That is the
case in the present instance.

In the view we have taken of this question the argument drawn by
the applicant from the Constitution of the United States has no
pertinency.

In conclusion we would add that, while we are constrained to
refuse this application, we respect the motive which prompts it,
and we entertain a profound sympathy with those efforts which are
being so widely made to reasonably enlarge the field for the
exercise of woman's industry and talent. While those theories
which are popularly known as "woman's rights" can not be expected
to meet with a very cordial acceptance among the members of a
profession which, more than any other, inclines its followers, if
not to stand immovable upon the ancient ways, at least to make no
hot haste in measures of reform, still all right-minded men must
gladly see new spheres of action opened to woman, and greater
inducements offered her to seek the highest and widest culture.
There are some departments of the legal profession in which she
can appropriately labor.

Whether, on the other hand, to engage in the hot strifes of the
Bar, in the presence of the public, and with momentous verdicts
the prizes of the struggle would not tend to destroy the
deference and delicacy with which it is the pride of our ruder
sex to treat her, is a matter certainly worthy of her
consideration.



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