BRADWELL v. THE STATE.
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
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.
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.
[**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.
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
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.