BRADWELL v. THE STATE.
83
Mr. Justice MILLER delivered the opinion of the court.
The record in this [***15] case is not very
perfect, but it may be fairly taken that the plaintiff asserted her right to a
license on the grounds, among others, that she was a citizen of the United
States, and that having been a citizen of Vermont at one time, she was, in the
State of Illinois, entitled to any right granted to citizens of the latter
State.
The court having overruled these
claims of right founded on the clauses of the Federal Constitution before referred [*138] to, those propositions may be considered as
properly before this court.
As regards the provision of the
Constitution that citizens of each State shall be entitled to all the
privileges and immunities of citizens in the several States, the plaintiff in
her affidavit has stated very clearly a case to which it is inapplicable.
The protection designed by that
clause, as has been repeatedly held, has no application to a citizen of the
State whose laws are complained of. If
the plaintiff was a citizen of the State of
The plaintiff seems to have seen
this difficulty, and attempts to avoid it by stating that she was born in
[***16]
While she
remained in
The fourteenth amendment declares
that citizens of the
We do not here mean to say that
there may not be a temporary residence in one State, with intent to return to
another, which will not create citizenship in the former. But the plaintiff states nothing to take her
case out of the definition of citizenship of a State as defined by the first
section of the fourteenth amendment.
In regard to that amendment
counsel for the plaintiff in this court truly says that there are certain
privileges and immunities which belong to a citizen of the United States as
such; otherwise it would be nonsense for the fourteenth amendment to prohibit a
State from abridging them, and he proceeds to argue that admission to the
[***17] bar of
a State of a person who possesses the requisite learning and character is one
of those which a State may not deny.
[*139]
In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges
and immunities belonging to citizens of the
The opinion just delivered in the
Slaughter-House Cases [***18] n6 renders
elaborate argument in the present case unnecessary; for, unless we are wholly
and radically mistaken in the principles on which those cases are decided, the
right to control and regulate the granting of license to practice law in the
courts of a State is one of those powers which are not transferred for its
protection to the Federal government, and its exercise is in no manner governed
or controlled by citizenship of the United States in the party seeking such
license.
n6 Supra, p. 36.
It is unnecessary to repeat the
argument on which the judgment in those cases is founded. It is sufficient to
say they are conclusive of the present case.
JUDGMENT AFFIRMED.
CONCURBY:
BRADLEY
CONCUR:
[**446]
Mr. Justice BRADLEY:
I concur in the judgment of the
court in this case, by which the judgment of the Supreme Court of Illinois is
affirmed, but not for the reasons specified in the opinion just read.
[*140]
The claim of the plaintiff, who is a married woman, to be admitted to
practice as an attorney and counsellor-at-law, is
based upon the supposed right of every person, man or woman, to engage in any
lawful employment for a livelihood. The Supreme Court of Illinois [***19] denied the application on the ground that, by
the common law, which is the basis of the laws of Illinois, only men were
admitted to the bar, and the legislature had not made any change in this
respect, but had simply rpovided that no person
should be admitted to practice as attorney or counsellor
without having previously obtained a license for that purpose from two justices
of the Supreme Court, and that no person should receive a license without first
obtaining a certificate from the court of some county of his good moral
character. In other respects it was left
to the discretion of the court to establish the rules by which admission to the
profession should be determined. The
court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms
of admission as would promote the proper administration of justice, and the
other that it should not admit any persons, or class of persons, not intended
by the legislature to be admitted, even though not expressly excluded by
statute. In view of this latter
limitation the court felt compelled to deny the application of females to be
admitted as members of the bar. Being
contrary to the rule [***20] of the
common law and the usages of Westminster Hall from time immemorial, it could
not be supposed that the legislature had intended to adopt any different rule.
The claim that, under the
fourteenth amendment of the Constitution, which declares that no State shall
make or enforce any law which shall abridge the privileges and immunities of
citizens of the United States, the statute law of Illinois, or the common law
prevailing in that State, can no longer be set up as a barrier against the
right of females to pursue any lawful employment for a livelihood (the practice
of law included), assumes that it is one of the privileges and immunities of
women as citizens to engage in any and every profession, occupation, or
employment in civil life.
[*141]
It certainly cannot be affirmed, as an historical fact, that this has
ever been established as one of the fundamental privileges and immunities of
the sex. On the contrary, the civil law, as well as nature herself, has always
recognized a wide difference in the respective spheres and destinies of man and
woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy
which belongs to the [***21]
female sex evidently unfits if for many of the occupations of
civil life. The constitution of the
family organization, which is founded in the divine ordinance, as well as in
the nature of things, indicates the domestic sphere as that which properly
belongs to the domain and functions of womanhood. The harmony, not to say identity, of
interests and views which belong, or should belong, to the family institution
is repugnant to the idea of a woman adopting a distinct and independent career
from that of her husband. So firmly
fixed was this sentiment in the founders of the common law that it became a
maxim of that system of jurisprudence that a woman had no legal existence
separate from her husband, who was regarded as her head and representative in
the social state; and, notwithstanding some recent modifications of this civil
status, many of the special rules of law flowing from and dependent upon this
cardinal principle still exist in full force in most States. One of these is,
that a married woman is incapable, without her husband's consent, of making
contracts which shall be binding on her or him.
This very incapacity was one circumstance which the Supreme Court of
It is true that many women are
unmarried and not affected by any of the duties, complications, and
incapacities arising out of the married state, but these are exceptions to the
general rule. The paramount destiny and
mission of woman are to fulfil the noble and benign
offices of wife and mother. This is the
law of the Creator. And the rules of
civil society [*142] must be adapted to the general constitution
of things, and cannot be based upon exceptional cases.
The humane movements of modern
society, which have for their object the multiplication of avenues for woman's
advancement, and of occupations adapted to her condition and sex, have my
heartiest concurrence. But I am not
prepared to say that it is one of her fundamental rights and privileges
to be admitted into every office and position, including those which require
highly special qualifications and demanding special responsibilities. In the nature of things it is not every
citizen of every age, sex, and condition that is qualified for every calling
and position. [***23] It is the prerogative of the legislator to
prescribe regulations founded on nature, reason, and experience for the due
admission of qualified persons to professions and callings demanding special
skill and confidence. This fairly
belongs to the police power of the State; and, in my opinion, in view of the
peculiar characteristics, destiny, and mission of woman, it is within the
province of the legislature to ordain what offices, positions, and callings
shall be filled and discharged by men, and shall receive the benefit of those
energies and responsibilities, and that decision and firmness which are
presumed to predominate in the sterner sex.
For these reasons I think that the
laws of
Mr. Justice SWAYNE and Mr. Justice
FIELD concurred in the foregoing opinion of Mr. Justice BRADLEY.
The CHIEF JUSTICE dissented from
the judgment of the court, and from all the opinions.