Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers

2. White Knights and Legal Knaves

12 ◊2÷ White Knights and Legal Knaves [T]here is a suit before the Court which was commenced nearly twenty years ago; in which from thirty to forty counsel have been known to appear at one time; in which costs have been incurred to the amount of seventy thousand pounds; which is a friendly suit; and which is . . . no nearer to its termination now than when it was begun. —Charles Dickens, 1853 WHEN, AFTER THE CIVIL WAR , a few brave women insisted upon the opportunity to become lawyers, they entered a profession with a decidedly mixed reputation, one populated solely by male practitioners who were responsible for the nature of their profession. By the late 1860s in the United States, significant economic and political changes were in place. Members of the legal profession, which had served rural colonial America and then a small agrarian nation, now understood that they must be capable of addressing the issues created by urbanism , industrial capitalism, and the building of transportation and communication infrastructures. Solo practitioners maintained legal practices in towns and cities, serving more traditional clients, but in the post-war years, law became an increasingly tiered profession, with an ever greater range of fees and status. * * * White Knights and Legal Knaves 13 Stretching back to seventeenth-century colonial America, citizens had searched for “justice beyond law”—justice without lawyers or courts.1 Many of the earliest colonists argued that law, and its servant-lawyers, breached social harmony by promoting contention and un-Christian, self-aggrandizing individualism. Some wags whispered that lawyers were only slightly better than the biblical serpent, and efforts were made in some communities to forbid the practice of law.2 Puritans contended that “the administration of justice should be based on individual conscience and the word of God rather than legal precedents.”3 Questions of law were presented as theological in nature, rather than legal, and not requiring the counsel of common-law attorneys.4 In The Scarlet Letter adulteress Hester Prynne is examined by a tribunal of magistrates, religious and political leaders charged with enforcing God’s will. Lawyers play no role in Hawthorne’s drama, set in 1640s colonial Boston, although the crime of which Hester stood accused carried a possible sentence of death. Despite deep mistrust of the profession, the number of lawyers increased in the eighteenth century. So, however, did the tongue lashings. Near the end of the Revolutionary War naturalized American Hector St. John de Crèvecoeur cautioned that lawyers were “plants that will grow in any soil that is cultivated by the hands of others; and when once they have taken root, they will extinguish every other vegetable that grows around them.”5 He singled out lawyers for the fortunes they acquired from the misfortunes of others. Writer Washington Irving was no less caustic. Satirizing secular New Amsterdam in his biting, 1809 burlesque account A History of New York, Irving described the unchecked presence of base lawyers—“caitiff scouts”—who, like Crèvecoeur ’s “plants,” infested the profession and caused the courts to be “constantly crowded with petty, vexatious, and disgraceful suits.”6 The commentaries were cutting, and after the Revolutionary War calls for abolition of the legal profession continued. Critics wanted “to simplify and Americanize the common law” and to democratize the system.7 The training of attorneys in English law lent credence to the idea that lawyers were “plotting the downfall of republicanism,” while some newspapers voiced the complaint that professions were “out of 14 White Knights and Legal Knaves place in a republican society.”8 Constitutionalism and commerce, however , ultimately provided a safe haven for lawyers, a shelter in which to repair their standing and create a more respectable future. It helped that patriot-essayist Thomas Paine proclaimed that in America, “the Law is King.”9 In his 1830s travels through the United States, Frenchman Alexis de Tocqueville also praised the rule of law and argued that in this new republic, “[T]he aristocracy . . . is on the bench and at the bar.”10 He argued that the “authority [Americans] have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy.”11 He thought that the study of law cultivated “certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally...