Changing Social Composition of the Bar

In the early nineteenth century the bar tended to be inbred, with its members drawn from the upper classes. Lawyers in Philadelphia in 1800, for example, were recruited "predominately from families of wealth, status, and importance." ¹⁵ Even in these early years, however, the pattern was far from uniform, and by the 1830s the bar became increasingly open as earlier formal restrictions to entry were either repealed or disregarded. By the 1860s both lawyers and judges displayed considerable variety in their family backgrounds. Before 1840, for example, most lawyers in Massachusetts were drawn from families where the fathers were professional and where the new lawyers went on to marry the daughters of professionals. After the Civil War a new pattern had emerged, with the children of businessmen taking an ever-greater part in the law and with them frequently marrying the daughters of businessmen. This lateral broadening of the profession appeared elsewhere, especially in the Northeast, Midwest, and to a lesser extent, the Far West. Diversity in the bar was a by-product of urbanization and industrialization. Elsewhere the social composition of the bar changed more slowly, especially in the South where the recruitment of lawyers remained in professional families well into the twentieth century. The bulk of the bar, however, was drawn throughout the nineteenth and early twentieth centuries from the middle class.

By 1900 the social transformation of the legal profession was occurring in another way. Foreigners, women, and blacks were gaining a modest representation. In the case of ethnic lawyers there was a generational lag as the children of immigrants were schooled and then entered the legal profession. For example, ethnic lawyers remained

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a small part of the legal profession in Massachusetts until as late as 1900, even though Boston was a magnet for Irish and Italian immigrants. In 1870 there were only forty (3.3 percent) foreign-born lawyers in Massachusetts, and half of these were Irish, and as late as 1896 people with Irish ancestry (that included those born in the United States) composed only I percent of all the profession in Boston. But ethnic lawyers were on the increase, and the pressure on law schools was so intense that they routinely created quotas for Jewish, Catholic, and East European students.

Most of the ethnic lawyers admitted to the bar through 1900, in Massachusetts and elsewhere, had less education and parents with lower social status than their counterparts who were from native stock. They lived and practiced in urban industrial areas, where they served a ready-made ethnic clientele. A few immigrant lawyers achieved distinction. Louis D. Brandeis, from a Jewish immigrant family in Louisville, Kentucky, became one of Boston's most successful corporate attorneys in the 1890s, later reaching the U.S. Supreme Court. But in most instances, even after gaining admission to practice, ethnic lawyers seldom achieved parity with the native elite that controlled the bars of every state.

Women suffered significant disabilities in attempting to practice law, reflecting their second-class political status. Women had a political role only when matters of public policy were deemed appropriate to their sex. Between 1875 and 1890, for example, seventeen states permitted women to vote in school board elections and three allowed women with property to vote on tax and bond referenda. Efforts by suffragettes to expand further political participation for women foundered. Between 1870 and 1910 seventeen states held referenda on giving women the right to vote, and only Colorado in 1893 and Idaho in 1896 were successful.

Women were further stigmatized when it came to the practice of law. They were excluded from the bar before the 1870s, and their ranks grew only at a glacial pace through the 1920s. Before 1920, for example, no woman was licensed to practice law in the state of Virginia, and in 1900 there were only fifty women with law practices in Massachusetts. But a few women wanted access to the bar. The most celebrated case was that of Myra Bradwell, who had married a lawyer in 1852. Bradwell studied law and passed her examination, but was refused admission to the bar of Illinois in 1869. She appealed to the U.S. Supreme Court, arguing that the equal protection clause of the Fourteenth Amendment prohibited state legislation excluding her from practice. The justices unanimously disagreed. Justice Joseph P. Bradley explained for the Court that the traditional family was "founded in the divine ordinance, as well as in the nature of things." Women's place was, according to Justice Bradley, inherently in the "domestic sphere" and not in the courtroom or the boardroom. ¹⁶

The Supreme Court held fast to this position, granting the states broad powers to exclude women from law practice (or, of course, to include them). Perhaps the most important case was Ex Parte Lockwood ( 1894). The justices were asked by Belva Lockwood, a nationally known feminist, to consider the refusal of the state of Virginia to admit her to law practice. The statute regulating admission to the bar provided that "any person" could be licensed, but public sentiment and cultural understanding clearly excluded women. The high court rejected Lockwood's appeal on the grounds that the term "persons" did not extend to women and that the right to practice law was not a privilege or immunity of a citizen of the United States. The next year, the Virginia statute was amended to permit "any male citizen" to be licensed to practice law. ¹⁷

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Women did make inroads, however, largely through the efforts of sympathetic state legislators. In the same year as the Bradwell case, Arabella Mansfield was admitted to practice in Iowa. The first woman lawyer in Illinois was Alta M. Hulett, who was single, and broke the barrier in 1873. Clara Foltz gained admission to the bar after successfully campaigning to have a California statute rewritten that restricted the practice of law to "any white male citizen." ¹⁸ The University of Michigan Law School decided to admit women in 1870; Yale's law school followed in 1886 and Cornell's in 1887. Yet the bar stayed a male preserve. As recently as 1960, less than 3 percent of the country's lawyers were women.

Black males enjoyed only slightly greater access to the bar than did women. As late as 1934, there were only about twelve hundred black lawyers. The 1870 census listed only three in Massachusetts; there were fourteen in North Carolina in 1890, and something slightly above two dozen in Texas in 1900. These black lawyers played an important role in the black communities they served, although they were less influential than ministers. In Galveston, Texas from 1895 to 1920, black attorneys, while restricted by the system of Jim Crow, "served their community and the law far more efficiently than conventional mythology suggests. As spokesmen for racial justice, they sometimes used their legal skills in creative ways to attack the institutionalized racism of the New South." ¹⁹

Black lawyers had a broad legal practice, handling both civil and criminal cases, although the most profitable cases (that of banks, industrial corporations, and trusts cases) went to white attorneys. Blacks, like the bar generally, reflected in their behavior the kinds of clients whom they served and who, as important, turned to them for legal counsel. Black lawyers were out of the mainstream of the legal profession in large measure because they represented a black clientele.

Date: 2015-01-29; view: 859