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Myra Bradwell: The Woman Behind Bradwell v. The State of Illinois

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In the mid-nineteenth century, women argued before the federal courts very rarely and before state or local courts only marginally more often. The 1870 census recorded a mere five women lawyers in the entire country, though most of these women were not licensed to practice in their states’ courts. None had been admitted to the United States Supreme Court Bar. In the midst of a changing economic landscape and the growing women’s suffrage movement, a cohort of women set out to make careers as lawyers and carved out the first small openings for women in the profession. They took a variety of approaches to their goal, often meeting with significant resistance and even failure. Despite these setbacks, several did manage to obtain licenses to practice in their respective courts. Though women would remain underrepresented in the field for over a century, these trailblazers forced essential first steps of change. By the end of the century, the census would record 1,010 women lawyers. This spotlight highlights one of these women, Myra Bradwell, who turned to the federal courts as a litigant in her quest to become a licensed attorney. 

Myra Bradwell was, officially, the first woman admitted to the Illinois State Bar, but she faced resistance from both the Illinois Supreme Court and the U.S. Supreme Court before she achieved that goal. Born in Vermont, she spent most of her life in what was then the West, primarily in Illinois. Her family were committed abolitionists. She was relatively well-educated, albeit in programs aimed at women. She eloped with James Bradwell due to her family's opposition to their union and taught school in Tennessee briefly before she and her husband returned to Illinois. They settled in Chicago in 1855.

Bradwell’s legal career started in her husband's new law office, where she helped with legal research and writing. The work piqued her interest, and she began to “read” the law—a method of becoming a lawyer through a kind of apprenticeship. Her stated goal at the time was to gain legal knowledge for the sake of working alongside her husband. She, and her husband, believed such joint work was an aid to a happy marriage and deterrent to divorce, which Bradwell spoke strongly against throughout her career. 

Bradwell’s movement towards becoming a licensed attorney slowed during the Civil War, when she devoted her time to numerous aid efforts for Union soldiers. She was particularly involved in women’s efforts to raise money for soldiers’ medical care. Bradwell’s wartime work gave her an opportunity to gain professional skills and show them in public alongside other women engaged in civic work, including some who would later become prominent suffrage leaders. Bradwell herself would also become a suffragist. In the wake of the war, she returned to her legal efforts, but her goals were focused less on helping her husband’s legal practice and more on building a legal career of her own. 

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In 1868, Bradwell launched the weekly Chicago Legal News, the first legal paper edited by a woman. As a married woman, she had to get a special charter from the Illinois legislature to start the newspaper, for which she was both the business and editorial manager. The publication reported on legal developments and provided commentary. It quickly became a prominent, trusted source of legal news. Her key innovation was publishing state statutory changes and thus getting them quickly to the legal community. This service made the newspaper invaluable to the state’s legal practitioners and even led Illinois to officially allow courts to take judicial notice of statutes and decisions published in the paper. Bradwell built on this success, expanding in both content and geographic scope. The publication would be a prominent source of legal news for decades to come, eventually becoming the most widely circulated legal paper in the country.

Shortly after starting Chicago Legal News, Bradwell took the next step in her efforts to become an attorney: passing the Illinois bar exam. She applied to practice law in the state in 1869. Applicants needed a certificate of good character from a county court, along with the certification of qualification. Bradwell provided both, but the court denied her application unanimously because she was a woman. She petitioned for reconsideration, responding to their reasoning, and was again denied. Initially, the reasoning hinged primarily on the fact she was a married woman. Under the doctrine of coverture, a woman lost her legal identity upon marriage. All property, legal rights, and obligations were assumed by her husband. The court reasoned this meant she could not enter binding contracts as was necessary for any lawyer. Coverture was already disappearing—an argument Bradwell made—but the court was unmoved on the further grounds that common law dictated lawyers were men and there was no evidence the legislature ever intended to change that practice. 

Bradwell appealed her case, bringing it into the federal courts. She argued the denial violated her Fourteenth Amendment rights. The basis of Bradwell's claim was the Privileges and Immunities Clause. As articulated by her lawyer Matthew Hale Carpenter,

The fourteenth amendment opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life; and that no citizen can be excluded from any one of them. Intelligence, integrity, and honor are the only qualifications that can be prescribed as conditions precedent to … entry.

The appeal occurred during contentious political times, and the argument had potentially far-reaching implications. The Fifteenth Amendment had only recently been ratified, and many women’s rights activists were disappointed it had not also extended the right to vote to women. Though her case was not about suffrage—and her attorney explicitly stated it did not implicate voting rights—it had the potential to clearly define women as full citizens with all the requisite privileges, which would have been a major victory for women’s rights advocates.

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There was no opposing council arguing on behalf of Illinois, but the court disagreed with Bradwell and Carpenter in 1873. An 8–1 majority, with Chief Justice Salmon Chase dissenting, ruled that “the right to admission to practice in the courts of a State is not one of [the privileges and immunities belonging to citizens of the United States].” The court cited the recently decided Slaughter-House Cases in which the court had also ruled against a party having a constitutional right to pursue a particular trade without state interference. A concurring opinion went further in agreeing with the Illinois Supreme Court that women were not fit for the profession. Justice Bradley said, “In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience.” In Bradley's view, there were “natural and proper” differences between the sexes, differences which were “the law of the Creator.” Specifically, women were supposed to be wives and mothers rather than in the public sphere. Those “natural” differences had to be accounted for by the law, and thus Illinois’s discrimination was not only constitutional but in proper accordance with natural law.

Bradwell commented on the decision multiple times in Chicago Legal News. She accepted the court’s decision regarding the limits of the Fourteenth Amendment’s application, noting that though she disagreed, she was happy Justice Miller’s opinion did “not for a moment lower the dignity of the judge by traveling out of the record to give his individual views upon what we commonly term ‘Women’s Rights.’” Contrastingly, she was incensed by Bradley’s concurrence. In the Slaughter-House cases, Bradley had dissented from the Court’s decision, along with two other justices. Earlier, when ruling on a request for an injunction in one of the cases while riding circuit, he issued an opinion articulating a broad reading of the Fourteenth Amendment. In that opinion, he explained his reasoning, saying it was a “right of citizenship … to pursue unmolested a lawful employment.” State regulation was permissible, but licenses should be open to all “except those who fail to exhibit the requisite qualifications.” Bradwell argued that Bradley’s Slaughter-house opinion was “in conflict” with his opinion in her case. She quoted it at length, ultimately asking how he could now change his position so drastically “simply because such citizen is a woman?”

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Times were changing, however, and Bradwell was optimistic. In another issue of Chicago Legal News, she commented, “Although we have not succeeded in obtaining an opinion as we hoped, which should affect the rights of women throughout the nation, we are more than compensated for all our trouble in seeing, as the result of the agitation, statutes passed in several States, including our own, admitting women upon the same terms as men.” While her case was pending appeal, Bradwell had helped draft and lobby for the successful bill she mentioned, which allowed women to participate in most professions freely, the military exempted. Bradwell herself refused to reapply for admission to the bar, claiming she had been wrongly denied in the first place. Instead, she continued to be active in both the legal community and in other aspects of civic life. (She played a key role in helping Mary Todd Lincoln obtain release from an insane asylum to which she had been committed by her son through strategic use of publicity and legal arguments.)

The bulk of Bradwell's career remained focused on the law and women's rights. In 1869, she had helped found the American Woman Suffrage Association, a leading organization of one wing of the suffrage movement. Her husband was part of the cause as well. Bradwell also continued to edit and manage Chicago Legal News. Within the newspaper's pages, Bradwell regularly promoted women’s rights and tried to shape the legal profession through persuasion. She championed other women’s efforts to succeed in the legal profession, reporting on those admitted to law schools and to the bar and on those who met with resistance. For example, she regularly reported on Belva Lockwood’s efforts to practice law.

Lockwood was the first woman admitted to the U.S. Supreme Court Bar and the first to argue in front of the Court, but the journey was long and frequently slowed by initial rejections. Bradwell not only followed the story in Chicago Legal News but also provided supportive commentary. When a judge in Maryland refused to allow Lockwood to appear before his court, for example, Bradwell sharply commented, “Whatever may have been his opinion about the propriety of admitting women to practice at the Bar, he had no right to abuse a woman from the Bench, and then refuse to hear her, adjourn his court, run away, and tell his sheriff if she attempted to address the Bar in the room to arrest or put her out.” Throughout her time as editor, she devoted considerable space in the newspaper to pushing for women’s and African Americans’ rights. 

In 1890, the Supreme Court of Illinois finally granted Bradwell a license to practice law. They granted it munc pro tunc (“now for then”), thus dating the documents to the original application in 1869. In 1892, the U.S. Supreme Court did so as well. The retroactivity made her the first woman licensed in Illinois. (A handful of other women around the country were already licensed attorneys.) Bradwell did not have much time to actually practice law, however. She died of cancer in 1894.

Litigants’ individual stories are often lost in court papers; Myra Bradwell’s case is typical in that the brief included only a small fraction of Bradwell’s experience leading to her quest coming before the court. Bradwell’s story highlights the person behind litigation that appeared in the federal courts and thus helps contextualize the case. She was one of several professional women active in the social and political issues of their day. She saw the legal professional as a key way to achieve professional fulfillment and pursue political goals. Though she was not admitted to either the Illinois Bar or the Supreme Court bar until her health prevented active practice, her case—not to mention her influence as a prominent legal journalist—was key in shaping the strategies of other like-minded women who eventually found success obtaining licenses to practice law.

Christine Lamberson, Director, Federal Judicial History Office
For more information, contact history@fjc.gov

Related FJC Resources:
Learn more about the Susan B. Anthony Trial, another federal court case surrounding women’s rights in this period.

Further Reading:
Drachman, Virginia. Sisters In Law: Women Lawyers in Modern American History. Cambridge, Mass.: Harvard University Press, 2001.

Friedman, Jane. America’s First Woman Lawyer: The Biography of Myra Bradwell. New York: Prometheus, 1993.

Norgren, Jill. Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers. New York University Press, 2013.

 

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.