Supreme Court Decision. 309 other statutes have expressly modified the legal rights and capacity of women in other important respects, tends rather to refute than to advance the theory that the legislature intended that these words should comprehend women. No inference of an intention of the legislature to include women in the statutes concerning the admission of attorneys can be drawn from the mere omission of the word "male." The only statute to which we have referred, in which that word is inserted, is the statute concerning the qualifications of voters in town affairs, which, following the language of the article of the constitution that defines the qualifications of voters for governor, lieutenant-governor, senators and representatives, speaks of "every male citizen of twenty-one years of age," etc. Gen. Sts. c. 18, 19. Const. Mass. Amendments, art. 3. Words which taken by themselves would be equally applicable to women and to men are constantly used in the constitution and statutes, in speaking of offices which it could not be contended, in the present state of law, that women were capable of holding.
The Courts of the commonwealth have not assumed by their rules to admit to the bar any class of persons not within the apparent intent of the legislature as manifested in the statutes. The word "persons," in the latest rule of Court upon the subject, was the word used in the rule of 1810 and in the statutes of 1785 and 1836, at times when no one contemplated the possibility of a woman's being admitted to practice as an attorney. 121 Mass. 600. 6. Mass. 382. St. 1785, c. 23. Rev. St. c. 18, 20. Gen. Sts. c. 121, 29. The United States Court of Claims, at December term, 1873, on full consideration, denied an application of a woman to be admitted to practice as an attorney upon the ground "that under the constitution and laws of the United States a Court is without power to grant such an application, and that a woman is without legal capacity to take the office of an attorney."Lockwood's Case, g Ct. of Claims, 346, 356. At October terms 1876 of the Supreme Court of the United States, the same petitioner applied to be admitted to practice as an attorney and counsellor of that Court, and her application was denied. The decision has not been officially reported, but upon the record of the Court, of which we have an authentic copy, it is thus stated: "Upon the presentation of this application, the chief-justice said that notice of this application having been previously brought to his attention, he had been instructed by the Court to announce the following decision upon it: By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are permitted to practice before it as attorneys and counsellors. This is in accordance with immemorial usages in England, and the law and the practice in all the States until within a recent period, and the Court does not feel called upon to make a change until such change is required by statute or a more extended practice in the highest Courts of the States." The subsequent act of congress of February 15, 1879, enables only those women to be admitted to practice before the Supreme Court of the United States who have been for three years members of the bar of the highest Court of a State or territory, or of the Supreme Court of the District of Columbia.
The conclusion that women cannot be admitted to the bar under the existing statutes of the commonwealth is in accordance with judgments of the highest Courts of the States of Illinois and Wisconsin. Bradivell's Case, 55 III., 525. Goodell's Case, 39 Wis., 232. The suggestion in the brief of the petitioner that women have been admitted in other States can have no weight here, in the absence of all evidence that (except under clear affirmative words in a statute) they have ever been so admitted upon deliberate consideration of the question involved, or by a Court whose decisions are authoritative.
It is hardly necessary to add that our duty is limited to declaring the law as it is, and that whether any change in that law would be wise or expedient is a question for the legislative and not for the judicial department of the government.
| [Signed:] | Charles Devens, | William.Endicott, | |
| William Allen, | Otis P. Loud, | ||
| Charles Allen. | Walbridge A. Field. |
