By Carron Nicks • February 29, 2020•Ms. JD, Writers in Residence
Who was the first woman lawyer in America? Was it a woman who bucked tradition in the heavily male-dominated American Colonies? How about a woman who studied law not in the powerhouse commercial centers of the East, but the American Heartland after the Civil War? Or the woman who took the denial of her bar application to the US Supreme Court?
History tells us that lawyers have been plying their trade since the days of ancient Rome and Greece. But history also tells us that those were male lawyers. From what we know, there were no female lawyers in America until at least the 17th Century. In fact, there is some disagreement as to who the first female lawyer actually was. Let’s look at the candidates.
In the early 1600s, the ratio of men to women in the American Colonies is estimated to have been 6:1. The pressure for women to marry was heavy. Despite all, Margaret Brent (c. 1601 - c. 1671) and her sister Mary chose to remain single. This one factor may have contributed more to Margaret’s success in business than any other.
In search of religious freedom, the Brent family immigrated to Maryland in 1638. Due to their family position and political affiliations, they secured large land grants and political offices. In 1639, Margaret became the first woman land owner in Maryland. Had she been married, her husband would have succeeded to her properties under the doctrine of coverture, which gave the husband the right to manage the property and make decisions for the family. As it were, as a single woman, she was allowed to own land and manage her properties in her own name.
By all accounts shrewd in business, Brent fiercely protected her family's interests in and out of court, and was at one point named executor of the estate Leonard Calvert, Lord Baltimore, the first proprietary governor of the state. She is said to have appeared in 124 court cases over eight years and won every single one of them. She also appeared as attorney for Lord Baltimore before the Maryland General Assembly. She was, however, never given the right to vote in that body.
About 1650 she moved with her family to property they had purchased in Virginia. There is no record of her having acted as an attorney after her move to Virginia.
Margaret Brent is remembered every year by the American Bar Association’s award to the Margaret Brent Women Lawyers of Achievement.
We have no record that Ms. Brent was ever officially recognized as a lawyer, which may have prejudiced her in the running for “first female lawyer.” If we were to attach that appellation to another woman of note, you might expect her to have been practicing in one of the centers of commerce or learning in the East like New York, Philadelphia or Boston, That is not the case.
Meet Arabella Mansfield (1946 - 1911). Arabella was born Belle Aurelia Babb near Burlington, Iowa. After graduating from Iowa Wesleyan College she taught for a year at what is now Simpson College in Des Moines. When her brother obtained his law license, she and her husband began studying law in the brother’s law office, which was an acceptable path to the profession at the time. As we learned in this column last month, women were often turned away from study in law schools due to misperceived notions that the legal profession was just too rambunctious for the delicacy of the female gender.
Mrs. Mansfield took the bar in 1869 even though officially the Iowa bar exam was restricted to males over 21. Her examiners were impressed. They noted that her performance on the exam gave “the very best rebuke possible to the imputation that ladies cannot qualify for the practice of law.”
At the time, the Iowa Code provided for the admission of “any white male person.” Arabella’s husband applied to be admitted at the same time as his wife, but despite the glowing recommendation of her examiners, she was not automatically admitted along with her husband. Later the same day, District Court Judge Francis Springer, an advocate of women’s rights, used that very statute against itself in a deft bit of statutory interpretation (and quick decisive legal action). He held that “the affirmative declaration that male persons may be admitted is not a denial of the right of females.” The next year, the legislature eliminated the words “white male”.
Even though it may have taken place in the Heartland, Mrs. Mansfield’s accomplishment was noted in that great commercial center of the East, New York. The New York Express wrote
As an innovation upon established custom, it has incited a deal of comment; but none of it that we have encountered contains a word against the policy of permitting females to become lawyers and to practice law upon terms of equality with men. In certain branches of legal practice, women could be quite as effective as men—perhaps more valuable as counsellors. In chamber practice, rather than as pleaders at the bar, they in many cases might excel male lawyers.
Yes, baby steps - first the law office then the court room.
An active suffragette and passionate educator, Mansfield chose to continue teaching rather than practice law, and she achieved several top administrative positions at Iowa Wesleyan College and DePauw University before her death in 1911.
The Iowa Organization of Women Attorneys awards the Arabella Mansfield Award, which honors an outstanding woman in the profession for her promotion and nurturing of women in the legal profession.
Just to muddy the competitive waters a bit, another woman who submitted her application to the bar in 1869 deserves to be considered for the title “America’s First Woman Lawyer”.
You might think that a woman who wrote legislation to allow women to control their earnings and property and who founded and published the Chicago Legal News in 1868 would have no trouble being admitted to the Illinois Bar. Unfortunately, not true.
Mrs. Bradwell studied law under the tutelage of her lawyer husband. After two years, in 1869 a federal appellate judge and the state’s attorney pronounced her fit to practice and recommended to the Illinois Supreme Court that she be admitted to the bar. Her application was summarily denied. The Illinois court reasoned that as a married woman, she could not enter into contracts on her own as would be required during the course of practicing law. Upon denying her second application, the chief justice of the Illinois Supreme Court pronounced that “God designed the sexes to occupy different spheres of action.” There is no indication on what evidence of God’s intent the lllinois chief justice relied.
Myra was not to be deterred.* She took her case to the United States Supreme Court. In what is probably the first sex discrimination case to come before the high court, her attorney argued that the Illinois Supreme Court violated the 14th amendment when it refused to admit her. The US Supreme Court was not persuaded. In its opinion issued in 1873, Justice Joseph Bradley summed up the Court's reasoning.
The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occuplations of civil life. . . [T]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.
Again, there is no indication on what evidence of God’s intent Justice Bradley relied.
Finally, some 16 years later, in 1890, Bradwell received her law license when the Illinois Supreme Court, acting on its own motion, approved her original application, which she submitted in 1869, the same year Mararet Brent was admitted in Iowa, and one year after Myra Bradwell Elementary School was named in her honor.
Each year, the Minnesota Women Lawyers presents the Myra Bradwell Award to an outstanding woman in the profession.
Picking one of these three woman for the title of America’s First Woman Lawyer is a feat for which your columnist is not qualified. Each was uncompromising and deserving in her own right. Shall we salute these three brave women, Margaret Brent, Arabella Mansfield, and Myra Bradwell, equally, and trust that God no longer intends that women be denied their place before the bar.
*Myra was no stranger to self-advocacy. Before she could publish the Chicago Legal News she had to obtain permission from the Illinois legislature.